the south china sea arbitration (the philippines v....

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The South China SeaArbitration (The Philippinesv. China): Assessment of theAward on Jurisdiction andAdmissibility

Sreenivasa Rao Pemmaraju*

Abstract

China claims “historic rights” over the islands and other maritime features inthe South China Sea. The Philippines contests these claims on the groundthat they are incompatible with the 1982 Convention on the Law of the Sea.It initiated arbitration under Annex VII of the (UNCLOS) for a declaratoryjudgment to that effect. China rejected the arbitral procedure in part becauseof its 2006 Declaration which excludes all such disputes from the compul-sory dispute settlement procedure of the Convention. This paper examinesthe recent award of the Arbitral Tribunal accepting jurisdiction over thesome of the submissions made by the Philippines. It finds that the UNConvention on the Law of the Sea has very little to offer to decide on issuesof sovereignty and associated issues of overlapping maritime entitlements.

I. The scope of the present paper1. It is now widely known that the South China Sea is rife with disputes concerningmaritime entitlements of coastal States bordering that area. China claims “historic

* Member, and President (2015-2017), Institut De Droit International; and formerMember and Chairman, International Law Commission. The article reflects onlythe views of the author in his personal capacity and he is solely responsible for them.They do not in any way reflect the views or engage the responsibility of theInstitutions, organizations or Associations or Governments with which he is or wasassociated.

.................................................................................................................................................................Cite this paper by paragraph numbers in this form: Author, Title, 15 Chinese JIL (2016), para.

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rights” and sovereignty and sovereign rights over the islands and other maritime fea-tures. Philippines, one of the States with conflicting claims with China, initiated arbi-tration under Annex VII of the 1982 Convention on the Law of the Sea (UNCLOSor the Convention or the 1982 Convention)1 questioning China’s claims to much ofthe South China Sea maritime area as incompatible with the 1982 UNCLOS. Boththe Philippines and China are parties to the UNCLOS. In 2006, China submitted adeclaration excluding all disputes that might involve questions of sovereignty and is-sues of delimitation of maritime boundaries from the procedure of compulsory settle-ment of disputes specified under Section 2 of Part XV, which is subject to thelimitations and exceptions specified under Section 3 of Part XV of the Convention.The Arbitral Tribunal was constituted in accordance with Annex VII of theUNCLOS, which is provided as a default procedure under article 287(3), to considerthe submissions of the Philippines. China refused to participate in its proceedings, cit-ing its declaration. The Tribunal accordingly had to first settle matters concerning itsjurisdiction. The Tribunal then rendered its award that it has jurisdiction on some ofthe Philippines’ submissions and suspended its decision on others, linking them tothe merits.2. The following paper is set out with a limited scope. Its main focus is to review

the decision of the Tribunal on jurisdiction and admissibility in the light of the reser-vations of China. It goes without saying that issues on merits of the dispute betweenChina and the Philippines are outside the purview of this paper, even if the treatmentof the subject matter sometimes makes it opportune to glance at them.

II. The context3. The South China Sea is a semi-enclosed sea in the western Pacific Ocean “spanningan area of almost 3.5 million square kilometers”. It is a “crucial shipping lane, a richfishing ground, and believed to hold substantial oil and gas resources”. It abuts severalStates. It lies to the “south of China and the islands of Hainan and Taiwan; to thewest of the Philippines; to the east of Vietnam; and to the north of Malaysia, Brunei,Singapore and Indonesia”.2 It includes hundreds of geographical features, eitherabove or below water.3 Five states have competing claims. It is of interest to note that

1 The Convention entered into force on 16 November 1994, in accordance with arti-cle 308(1). As of 17 April 2016, there are 157 Signatories, and 167 Parties to theConvention. For the text of the Convention, United Nations Treaty Series, vol.1833, 3.

2 For a brief description of the South China Sea, see the case, the Republic ofPhilippines v. The Republic of China, PCA case No. 2013-19, Award onJurisdiction and Admissibility, 29 October 2015, para 3, p.2 (hereinafter, Award).

3 For the purpose of the case between the Philippines and China, the Award listssome geographic features indicating their names in English, Chinese and the

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China claims sovereignty and historic rights over all the islands and other maritimefeatures of South China Sea which lie beyond the 12mile territorial sea limit ofChina as well as that of any other coastal State.4 China claims to have exercised au-thority and control historically over the entire South China Sea prior to and duringthe period of its colonization and occupation by Japan.5 These “historic rights” are il-lustrated by a map depicting what has since come to be known as the dotted/nine-dash line. The dotted line encloses the main island features of the South China Sea:the Pratas Islands, the Paracel Islands, the Macclesfield Bank, and the Spratly Islands.The dotted line also captures James Shoal which is as far south as 4 degrees north lati-tude. On its significance, it is noted in an essay that,

The study carried out here reveals that, though termed differently, the nine-dash line can be best defined, in view of China’s long-standing practice, as aline to preserve both its title to territory and its historic rights. It has threemeanings. First, it represents the title to the island groups that it encloses. In

Filipino languages. These are in English: Cuarteron Reef, Fiery Cross Reef, GavenReef, Johnson (south) Reef, Macclesfield Bank, McKennan Reef (incl. HughesReef), Mischief Reef, Namyit Island, Reed Bank, Scarborough Shoal, SecondThomas Shoal, Sin Cowe Island and Subi Reef. All these are part of Spratly Islandgroup (Nansha Quando, in Chinese or, in part, Kalayaan Islands in Filipino).

4 These are Paracel Islands [Xisha Islands¼Chinese name for Paracel Islands, HoangSa Islands¼Vietnamese name for Paracel Islands, Yong Xing¼Chinese name forWoody Island]; Spratly Islands [Nansha Islands¼Chinese name for Spratly Islands,Kalayaan Island Group (KIG)¼Philippine name for group in the Spratly Islands,Truong Sa Islands¼Vietnamese name for Spratly Islands, Tai Ping¼new Chinesename for Itu Aba]; Dongsha Islands¼Chinese name for Pratas Islands; ZhongshaIslands¼Chinese name embracing Macclesfield Bank and certain rocks, sandbanks,and reefs; and Huang Yan¼Chinese name for Scarborough Shoal or Reef. See forthe presentation, Lori Fisler Damrosch and Bernard H. Oxman, Agora: the SouthChina Sea, editors’ introduction, 107 AJIL (2013), 95-97 at 97. Taiwan’s claims aresimilar to the one asserted by China.

5 It is noted that “Chinese activities in the South China Sea dates back 2000 yearsago”. Further, “China was the first country to discover, name, explore and exploitthe resources of the South China Sea Islands and the first to continuously exercisesovereign powers over them”. Following the end of World War II, stating thatChina actively resumed its activities over the area and by 1948, after conductingnecessary surveys and renaming the islands, it was able to publish “an official mapwhich displayed a dotted line in the South China Sea”. The People’s Republic ofChina, founded on 1 October 1949, maintained sovereignty of China over theSouth China Sea and officially pronounced as part of its 1958 Declaration on theTerritorial Sea and 1992 Law of the People’s Republic of China on the TerritorialSea and Contiguous Zone that “the territory of People’s Republic of China includes,among others, the Dongsha islands, the Xisha islands, the Zhongsha islands, and theNansha islands”. See the Position Paper of the People’s Republic of China, http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml, para.4.

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other words, within the nine-dash line in the South China Sea, China has sover-eignty over the islands and other insular features, and has sovereignty, sovereignrights, and jurisdiction—in accordance with UNCLOS—over the waters andseabed and subsoil adjacent to those islands and insular features. Second, it pre-serves Chinese historic rights in fishing, navigation, and such other marine ac-tivities as oil and gas development in the waters and on the continental shelf sur-rounded by the line. Third, it is likely to allow for such residual functionality asto serve as potential maritime delimitation lines.6

4. Vietnam also claims historic titles and rights to parts of the South China Sea. Inaddition, China, Vietnam, Malaysia, Indonesia, Brunei, and the Philippines havecoastal projections into the South China Sea with maritime claims and overlappingentitlements under the 1982 Convention. Malaysia and Vietnam have filed a jointsubmission before the Commission on the Limits of the Continental Shelf. China op-posed this consideration by a note verbale of 7 May 2009 attaching a copy of its claimas represented by “nine-dash” line.7

6 For an analysis of the nine-dash line, see Zhiguo Gao and Bing Bing Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107 AJIL(2013), 98-124 at 124. For an earlier analysis of the nine-dash line, see LI Jinmingand LI Dexia, The Dotted Line on the Chinese Map of the South China Sea: ANote, 34 Ocean Development & International Law (2003), 287–295, at 294,where the authors stated: “the dotted line then defined the sphere and the sover-eignty, or the ownership, of the Paracel and the Spratly Islands. Nevertheless, thedotted line shown on the Chinese map is also China’s maritime boundary in theSouth China Sea because of two characteristics of the dotted line. First, the locationof the dotted line followed the international principles regarding maritime bound-aries then in existence in that it was drawn as an equidistance/median line betweenthe isles and reefs at the outer edge of China’s South China Sea islands and thecoastline of neighboring adjacent states. Second, the dotted line was the manner ofdesignating a claimed national boundary line. Thus, ‘the nine-dotted line’ had adual nature. Not only did it define China’s sovereignty over the South China SeaIslands, but it also played the role of China’s claimed ocean boundary in the SouthChina Sea. The lines therefore can be called the Chinese traditional maritimeboundary line in the South China Sea.”

7 See https://en.wikipedia.org/wiki/Spratly_Islands_dispute for a statement of the dis-pute involving the Spratlys and the claims of different States involved and for a de-scription of the Spratly islands and associated “maritime features” (reefs, banks, cays,etc.) located in the South China Sea. Only China (PRC), Taiwan (ROC), andVietnam have made claims based on historical sovereignty of the islands. ThePhilippines, however, claims part of the area as its territory under the UNCLOS.For summary of the territorial claims of countries involved see www.globalsecurity.org/military/world/war/spratly-claims.htm. See also for a list of islands in the Spratlygroup and various incidents or claims or assertion of authority and control, https://en.wikipedia.org/wiki/List_of_maritime_features_in_the_Spratly_Islands.

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Given the complex nature of geography of the South China Sea, the number ofclaimants involved and conflicting legal bases of claims made, the countries of the re-gion and in particular the States having conflicting claims have been engaged in activeconsultations on the best possible means of resolving the disputes in a peaceful man-ner. As part of these consultations, China and the South East Asian Nations con-cluded on 4 November 2002 a Declaration on Code of Conduct (DOC) in thisrespect under the auspices of the Association of South East Asian Nations (ASEAN).In accordance with paragraph 4 of the DOC, the parties agreed “to resolve their terri-torial and jurisdictional disputes by peaceful means [. . .] through friendly consulta-tions and negotiations by sovereign States directly concerned, in accordance withuniversally recognized principles of international law, including the 1982Convention on the Law of the Sea”.8

All the countries abutting the South China Sea are parties to the Convention. Chinain particular also made a declaration on 25 August 2006 to state that it does not acceptany of the procedures provided for in section 2 of Part XV of the Convention with re-spect to all the categories of disputes referred to in Paragraph1(a)-(c) of Article 298 ofthe Convention.9 The Philippines, which also submitted an “understanding”,10 how-ever initiated arbitration under Annex VII of the Convention on 22 January 2013

8 Ibid., para.35.9 For the full text of the Chinese Declarations see UN Treaty Series, https://treaties.

un.org/pages/ViewDetailsIII.aspx?src¼TREATY&mtdsg_no¼XXI-6. It states:Declaration:

(1) In accordance with the provisions of the United Nations Convention on the Law ofthe Sea, the People’s Republic of China shall enjoy sovereign rights and jurisdiction over anexclusive economic zone of 200 nautical miles and the continental shelf.

(2) The People’s Republic of China will effect, through consultations, the delimitationof boundary of the maritime jurisdiction with the states with coasts opposite or adjacent toChina respectively on the basis of international law and in accordance with the equitableprinciple.

(3) The People’s Republic of China reaffirms its sovereignty over all its archipelagoesand islands as listed in article 2 of the Law of the People’s Republic of China on theTerritorial Sea and Contiguous Zone which was promulgated on 25 February 1992.

(4) The People’s Republic of China reaffirms that the provisions of the United NationsConvention on the Law of the Sea concerning innocent passage through the territorial seashall not prejudice the right of a coastal state to request, in accordance with its laws and reg-ulations, a foreign state to obtain advance approval from or give prior notification to thecoastal state for the passage of its warships through the territorial sea of the coastal state.

25 August 2006Declaration under article 298:

The Government of the People’s Republic of China does not accept any of the proce-dures provided for in Section 2 of Part XV of the Convention with respect to all the catego-ries of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

10 For the full text of the Philippines’ Understanding, see ibid.,Philippines’ Understanding made upon signature and confirmed upon ratification:



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against China seeking to resolve a dispute over the Parties’ respective “maritime entitle-ments”11 and the lawfulness of Chinese activities in the South China Sea.5. The Philippines in particular sought a declaratory award on three interrelated

matters: First, that China’s claims regarding the rights and obligations in regard tothe waters, seabed, and maritime features of the South China Sea, on the basis of his-toric rights and as depicted in the map containing the nine-dash line, are invalid be-cause they are inconsistent with the Convention. According to the Philippines thedispute it has with China is solely governed by the Convention. Second, it seeks de-termination as to whether, under the Convention, certain maritime features claimedby both China and the Philippines “are properly characterized as islands, rocks, low-tide elevations, submerged banks”; and on the type of maritime rights they are capa-ble of generating. The Philippines focused in this connection, in particular, onScarborough Shoal and eight specific features in the Spratly Island group. The main

(1) The signing of the Convention by the Government of the Republic of the Philippinesshall not in any manner impair or prejudice the sovereign rights of the Republic of thePhilippines under and arising from the Constitution of the Philippines;

(2) Such signing shall not in any manner affect the sovereign rights of the Republic of thePhilippines as successor of the United States of America, under and arising out of theTreaty of Paris between Spain and the United States of America of December 10, 1898,and the Treaty of Washington between the United States of America and Great Britain ofJanuary 2, 1930;

(3) Such signing shall not diminish or in any manner affect the rights and obligations of thecontracting parties under the Mutual Defense Treaty between the Philippines and theUnited States of America of August 30, 1951, and its related interpretative instruments;nor those under any other pertinent bilateral or multilateral treaty or agreement to whichthe Philippines is a party.

11 “Entitlement” literally means a right a person or a subject or State has under law.This is not the same as a claim a State like the Philippines makes against the claimsof China. Entitlement is a broader concept than a claim which is a demand basedon what the subject considers as its rights under law. Entitlement could be seen as aright in favor of one party, objectively determinable, and arises after the settlementof conflicting claims. Entitlement in that sense is an accrued right as opposed to aclaim which requires judging and deciding upon merits. Accordingly, in respect ofissues of sovereignty and maritime delimitation, which are the subject matter of adispute, to use the term maritime “entitlement” tends to confuse the real issue in-volved, that is, determination of respective rights of parties as an outcome of resolu-tion of conflicting claims. The Philippine memorials and the Tribunal appear to usethe term “maritime entitlements” more in the sense of “maritime claims”.Throughout this presentation, wherever the term “maritime entitlement(s)” is usedit is employed with the understanding that it refers only to claims and not to accruedrights. It is entirely a different matter where different types of entitlements or rightsaccrued to two or more States could come into conflict. For example, the exercise ofsovereign rights or entitlements by a coastal State in its exclusive economic zonecould come in conflict with the entitlements or rights of third States in respect ofthe exercise of the freedoms of the high seas.

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objective of the Philippines in raising these two issues is to question Chinese claims tosovereignty over these maritime features and using them as a basis for its maritime en-titlements. Third, “the Philippines seek declarations that China violated theConvention by interfering with the exercise of the Philippines sovereign rights andfreedoms under the Convention and through construction and fishing activities thathave harmed the marine environment”.12

III. Issues before the Tribunal and the positions of the Parties6. Against the above general background, the Arbitral Tribunal constituted underAnnex VII of UNCLOS examined the various claims submitted by the Philippinesamounting to no fewer than 15 submissions.13

Submissions 1 and 2 relate to the broader claim of China that it has maritime entitle-ments in the South China Sea which in the view of the Philippines go beyond those pro-vided by UNCLOS. Further, the Philippines sought a declaration from the Tribunalthat the Chinese claims based on the nine-dash line are inconsistent with UNCLOSand invalid. Submissions 3 deals with the nature of Scarborough shoal (whether it is asand bank or a mere rock or, as the Chinese claim, it is an island, capable of generatingmaritime zones); Submission 4 relates to Mischief Reef, Second Thomas Shoal, andSubi Reef, and the claim of the Philippines that they are low-tide elevations and incapa-ble of generating maritime zones, while China considers them to be part of NanshaIslands and capable of generating maritime zones; Submission 5 relates to thePhilippines claim that the Mischief Reef and Second Thomas Reef are part of its EEZand continental shelf. China considers them to be part of Nansha Islands. Also thisclaim relates to the question whether the Spratly Islands can generate an EEZ and

12 See Award, above n.2, paras.4-6, 1-2.13 For a comment on these Submissions as part of the Notification and Statement of

Claim by the Philippines as of 3 June 2014; and for the view that they are allsovereignty-delimitation related, that is, either incidental to claims of sovereignty orhistoric titles over one major island or the other in the Nansha group of Islands orHuangyan Dao or could be legally determinable only as part of or in consequence ofmaritime delimitation, and hence could not be treated as proper and valid claimsconcerning the interpretation and application of the Convention under article288(1) or cannot provide jurisdiction to the Tribunal in view of the 2006Declaration of China or by the Understanding of the Philippines being disputes ex-cluded from the procedures of compulsory settlement of disputes, see, Sienho Yee,The South China Sea Arbitration (The Philippines v. China): PotentialJurisdictional Obstacles or Objections, 13 Chinese Journal of International Law(2014), 663-739, at 688 (“It does not take too much for one to imagine that the dis-pute does contain two aspects—sovereignty over islands and reefs and other featuresand maritime delimitation between China and the Philippines”). For a more de-tailed analysis of the various Submissions, see 688-736, summary, 736-739.



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continental shelf. Submission 6 is about the Gaven Reef andMcKennan Reef (includingHughes Reef), the claim of the Philippines being that they are low-tide elevations;Submission 7 is about Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, raising theissue whether they do or do not generate an entitlement to EEZ and continental shelf;Submission 8 relates to the claim of the Philippines that China is unlawfully interferingwith its legitimate rights under UNCLOS within its EEZ; Submission 9 relates toclaims of fishing rights being exercised by China in an area in which the Philippines con-siders it has sovereign rights; Submission 10 is related to the rights of the Philippines’fishermen within the territorial sea of Scarborough Shoal; Submission 11 concerns theclaim of the Philippines that Chinese acts cause damage and do not protect and preservethe marine environment surrounding the Scarborough Shoals and the Second ThomasShoal; Submission 12 relates to Mischief Reef, a low tide elevation, claimed by thePhilippines as part of the seabed and subsoil of its EEZ and continental shelf. It may benoted that China claims the same feature and is engaged in construction and other activ-ities there. Submission 13 is about law enforcement activities of China which thePhilippines assert as a violation of its obligations under the Convention on InternationalRegulations for the prevention of collisions at Sea and UNCLOS; Submission 14 isabout the Chinese activities at Second Thomas Shoal, claimed by the Philippines as pre-venting it from exercising its right of stationing its forces on the shoal and navigationaround it.7. The Submissions of the Philippines, as noted above, could be broadly summed

up. As the Tribunal noted that Submissions 1 to 7 “concern various aspects of theParties’ dispute over the sources and extent of maritime entitlements in the SouthChina Sea”. Submissions 8 to14 “concern a series of disputes regarding Chinese activ-ities in the South China Sea”,14 the lawfulness of which is disputed by thePhilippines.8. China rejected the recourse to arbitration by the Philippines and adhered to the

position of neither accepting nor participating in these proceedings. It maintains fur-ther that the Tribunal does not enjoy jurisdiction in the absence of its consent as theissues concerning interpretation and application of the Convention could arise onlyafter a State’s “sovereignty over maritime features is determined”. “When not subjectto State sovereignty”, China points out, “a maritime feature per se possesses no mari-time rights or entitlements whatsoever”.15 China also objects to the selection of cer-tain maritime features for the purpose of assessing their eligibility to generate

14 See ibid., para. 173, 68. The activities in question relate to Parties’ respective petro-leum and survey activities, fishing (those engaged in by the Chinese and those activi-ties of Philippines Chinese obstruct), Chinese installations on Mischief Reef, theactions of Chinese law enforcement vessels, and the Philippines’ military presenceon Second Thomas Shoal.

15 See the Position Paper of China, ibid., para.17.

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maritime zones, whereas its claim is for sovereignty over the entire Nansha (Spratly)Islands group which is an archipelago comprising several islands, in particular the“Taiping Dao”, the largest island, and other maritime features. “Taiping Dao” (ItuAbu Island) in the Nansha (Spratly) Islands group, is currently controlled by theTaiwan authorities. The Philippines’ submission in this regard also excluded someother parts of Nansha Islands (Spratly Islands group). China considers the parts of is-lands thus excluded by the Philippines to be under illegal occupation by thePhilippines; and this exclusion amounted to a distortion of the “nature and scope ofthe China-Philippines disputes in the South China Sea”.16 Concerning the third cate-gory of claims put forward by the Philippines, “China maintains that the legality ofChina’s actions in the waters of Nansha (Spratly) Islands and Huangyan Dao(Scarborough Shoal) rests on both its sovereignty over relevant maritime features andthe maritime rights derived therefrom”.17

9. Before we proceed to further analyze the arbitral award on jurisdiction and ad-missibility, it may be necessary to review the scheme of settlement of disputes underUNCLOS to put the Chinese declaration on exclusion of disputes concerning itsrights in the South China Sea in perspective.

IV. Settlement of disputes under UNCLOS: limitations10. The 1982 UNCLOS, which came into force in 1994, provides for an elaboratesystem for settlement of disputes. Part XV contains three sections. Section 1 providesfor settlement of disputes involving interpretation and application of the Convention.“Free choice of means of settlement” is the basic norm, and the only obligation is thatthese should be “peaceful” and should in no way endanger “international peace andsecurity, and justice”; and parties in a dispute can choose from among the means indi-cated under Article 33 of the UN Charter.18 The system of settlement of disputes

16 See ibid., para.22. It is also noted that seven of the maritime features, excluding theeighth maritime feature, the Scarborough Shoal, which the Philippines considers asrocks, reefs, low tide elevations or submerged features, are well within 200 milesfrom the Taiping Dao (Ita Abu Island). Measured from the Yongxing Dao (theWoody Island), the Huangyan Dao (Scarborough Shoal) is situated at a distance of301 miles but within the extended continental shelf of China. The situation of thesefeatures is the same even when they are measured from Zhongye Dao (ThituIsland), according to China illegally occupied by the Philippines; except that theHuangyan Dao (the Scarborough Shoal) is at a distance of 315 miles. See SienhoYee, above n.13, 698-699.

17 See ibid., para.26.18 These include various means noted thereunder but first of all by negotiation in the

order of priority and other means, such as enquiry, mediation, conciliation, arbitra-tion, judicial settlement; as well as resort to regional agencies or arrangements, orother peaceful means of their own choice (articles 279, 280 and 284).



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under Part XV is a default system. It comes into operation according to article 281(1)of Section 1 only if the parties to a dispute did not by a separate agreement committhemselves to any other means of settlement of the dispute of their own choice.However, if in spite of the recourse to the chosen means of settlement, the dispute isnot settled, the procedure under Part XV would apply unless parties to the agreementalso excluded “any further procedure”. According to Article 281(2) any return to theprocedure under Part XV of the Convention is also subject to any time-limit agreedby the parties. Article 282 also excludes Section 1 procedure in the case the parties toa dispute have accepted a compulsory binding settlement of the dispute through ageneral, regional, or bilateral agreement unless that agreement provides for Part XVprocedures. In case of a dispute concerning the interpretation and application of theConvention, the parties are obliged under article 283 to “exchange views”.11. Whether parties are required to engage in formal negotiations on specific as-

pects of the dispute as a precondition for submitting matters to the compulsory pro-cedures is a separate issue, partly connected to a finding on the existence of “dispute”and partly to be dealt with as one of the means of settlement by way of free choiceavailable to the parties to the dispute. The arbitral Tribunal in the present case spentconsiderable time to identify any exclusions or objections to its jurisdiction. A relatedquestion in this regard is where a party pleads that any one or more means of settle-ment of disputes freely chosen by the parties excluded recourse to Part XV proce-dures, whether it is also required to show that such exclusion is express.12. States parties are offered under Section 2 of Part XV a choice of four forums to

elect for submission of a dispute, in case it remains unresolved by recourse to Section1. These are: the International Tribunal for the Law of the sea, the International courtof Justice, an arbitral tribunal constituted in accordance with Annex VII and a specialarbitral tribunal constituted in accordance with Annex VIII for one or more of thecategories of disputes specified therein (article 287(1)(a)).19 According to article287(1)(a), arbitration in accordance with Annex VII will be the applicable forum ifno other forum is chosen by the parties by a declaration or in case the parties did notchoose the same forum under declaration they filed. Any declaration made in this re-gard is without prejudice or is not affected by the obligation of a State Party “to acceptthe jurisdiction of the Sea-Bed Dispute Chamber of the International Tribunal forthe Law of the Sea to the extent and in the manner provided for in Part XI, section5”.13. Section 2 of Part XV provides for compulsory settlement of disputes concern-

ing the interpretation and application of the Convention. But this is subject to thelimitations prescribed under article 297, Section 3 of Part XV. First, with respect to

19 These relate to fisheries, protection and preservation of the marine environment,marine scientific research, or navigation including pollution from vessels and bydumping (Article 1, Annex VIII).

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disputes concerning the exercise by a coastal State of its sovereign rights or jurisdic-tion, only the following claims are subject to the compulsory procedure:

(a) that the coastal State acted in contravention of the provisions on freedoms ofthe high seas specified under article 58; or

(b) that a State exercising those freedoms under article 58 “acted in contraventionof the provisions” of UNCLOS; or

(c) that a coastal State has acted in contravention of specified international rulesand standards for the protection and preservation of the marine environmentwhich are applicable to the coastal State and which have been established bythis Convention or through a competent international organization or diplo-matic conference in accordance with this Convention.

So also under article 297(2), claims concerning the interpretation and applicationof provisions concerning marine scientific research are subject to the compulsory pro-cedure. However, in this regard, disputes concerning (i) the exercise by the coastalState of a right or discretion in accordance with article 246; or (ii) a decision by thecoastal State to order suspension or cessation of a research project in accordance witharticle 253, may be submitted, at the request of either party, to conciliation underAnnex V, section 2 of UNCLOS. Even then the conciliation commission so consti-tuted is not authorized to question “the exercise by the coastal State of its discretionto designate specific areas referred to in article 246, paragraph 6 or of its discretion towithhold consent in accordance with article 246, paragraph 5”.14. Further, section 2 compulsory procedures are also applicable under article

297(3)(a) to disputes involving interpretation and application of provisions concern-ing fisheries. However, claims concerning the exercise by the coastal State of its sover-eign rights with respect to living resources within its economic zone; or the exercise ofsuch rights including the exercise of its discretionary powers for determining “the al-lowable catch, its harvesting capacity, the allocation of surpluses to other States andthe terms and conditions in its conservation and management laws and regulations”are not open to compulsory settlement procedures. In such cases, however, at the re-quest of one of the parties, the dispute may be submitted to the compulsory concilia-tion procedure provided in Annex V, section 2 of UNCLOS, if it is alleged that,

(i) the coastal State manifestly failed to comply with its obligation, throughproper conservation and management, to prevent serious endangerment tothe maintenance of living resources in its EEZ; or

(ii) arbitrarily refused to determine the allowable catch and its capacity to harvestliving resources with respect to stocks in which another State party is inter-ested in fishing even when that State so requested; or



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(iii) a coastal State has arbitrarily refused to allocate to any State, under articles62, 69, and 70, the whole or part of the surplus it has declared to exist, underconditions and terms established by it consistent with UNCLOS.20

15. In arriving at any findings concerning the matters so noted, the conciliationcommission concerned is not authorized to substitute its discretion to that of thecoastal State.16. In addition to the above, under article 298 of section 3, Part XV, States Parties

to UNCLOS are competent to exclude by express declarations at the time of signing,ratifying or acceding to the Convention, the following category of disputesconcerning,

(i) “the interpretation and application of articles 15, 74, 83 relating to sea bound-ary delimitations or those involving historic bays or titles”; or

(ii) “military activities including military activities by government vessels and air-craft engaged in non-commercial service and law enforcement activities in re-gard to the exercise of sovereign rights or jurisdiction excluded from thejurisdiction of a court or tribunal under articles 297, paragraph 2 or 3”.

17. Disputes concerning sea boundary delimitations, or those involving historicbays or titles arising subsequent to the entry into force of this Convention (that is 16November 1994), however, could be submitted under article 298(1)(a)(i) to the com-pulsory conciliation procedures under Annex V, section 2, where no agreement isreached within a reasonable period of time in negotiations between the parties, at the

20 There was no controversy over the concept of optimum utilization of fishery re-sources as all States “accepted that this principle contributes to satisfy the food needsof humanity and avoids the waste of renewable resources”. It is further noted that“modalities of access by third States to the surplus [. . .] was [sic] the object of diffi-cult and arduous negotiations. The resulting compromise is reflected in articles 61and 62. Its main elements are: 1) the coastal State’s right to determine the maximumallowable catch within its zone, as well as its own harvesting capacity thus guarantee-ing its right to exploit totality of the allowable catch if it has the capacity to do so;and 2) the coastal State’s obligation to allow for foreign fishing of the surplus subjectto its terms and conditions. Among these are the discretionary power to attributethe surplus and the payment of fees and other forms of remuneration or compensa-tion, in the field of financing, equipment and technology”. For a first-hand accountthe negotiation history concerning the rights and duties of the coastal State and therights of third States within the EEZ, see Jorge Castaneda, Negotiations on theExclusive Economic Zone at the Third United Conference on the Law of the Sea,in: Makarcyzk, J. (ed.), Essays in International Law in honor of Judge ManfredLachs (Institute of the State and Law of the Polish Academy of Sciences, MartinusNijhoff Publishers, Kluwer Academic Publishers Group, The Hague, 1984), 605-623, Reprinted by the Ministry of External Relations, Government of Mexico,(New York, 2002), 42-43.

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request of any party to the dispute. The overall obligation to submit to a compulsoryconciliation procedure under 298(1)(a)(i) will however not apply in respect of a mari-time boundary dispute which “necessarily involves the concurrent consideration ofany unsettled dispute concerning sovereignty or other rights over the continental shelfor insular territory”.21 In other words, obligation contained in article 298(1)(a)(i) tosubmit a conciliation procedure is subject to three conditions: (i) the dispute shouldhave arisen after the Convention entered into force; (ii) no agreement could bereached between the parties settling the dispute within a reasonable period of time;and (iii) that the dispute did not involve “the concurrent consideration of any unset-tled dispute concerning sovereignty or other rights over continental shelf or insularland territory”.Further, after the mandatory procedure of conciliation is triggered in the absence

of any of the three limitations noted above, the parties are required under article 298(1) (a)(ii) to negotiate settlement of the dispute on the basis of recommendationsmade by the Conciliation Commission which are not binding. If these negotiationswere not to result in any agreement, within a reasonable period of time, the partiesshall, by mutual consent, submit the question to one of the procedures provided for insection 2, unless the parties otherwise agree” (emphasis added). Thus, if the disputewere to remain unsettled even after negotiations between the parties on the basis ofthe report of the conciliation commission, as required by article 298(1)(a)(ii), any fur-ther recourse to settlement of dispute procedure is, strictly, subject to “mutual con-sent” of the parties.18. In sum, States could exclude from the compulsory means of settlement of dis-

putes, under articles 297 and 298, issues concerning historic bays or titles. It is also agiven that coastal States could exercise the option of excluding issues concerning mar-itime delimitation from this scheme of settlement of disputes. Further, those mari-time disputes that concurrently require consideration of any unsettled disputeconcerning sovereignty or other rights over the continental shelf or insular territoryare excluded even from the compulsory conciliation procedure. The ConciliationCommission, by its very nature, could only investigate the dispute and propose theterms of settlement but its report containing its findings and recommendations arenot binding.22 But they could be used as a basis for settling the dispute or resolve theconflicting claims if the parties are so disposed. This was for example the case when

21 For an analysis of the maritime boundary dispute settlement procedures underUNCLOS see M.C.W. Pinto, Maritime Boundary Issues and Their Resolution: AnOverview, in: Nisuke Ando, Edward McWhinney and Rudiger Wolfrum (eds.),Liber Amicorum Judge Shugeru Oda (2002), 1115-1142. He noted that article298(1)(a) indicates that he Convention seems to concede that this type of dispute“is to remain wholly outside the ambit of even compulsory conciliation” (at 1130).

22 See M.N. Shaw, International Law (Cambridge, 5th ed., 2003), 926.



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the dispute between Norway and Iceland in relation to the continental shelf aroundJan Mayen Island was settled on the basis of recommendations made by aConciliation Commission.23 But if one of the parties is not favorably disposed to-wards the compulsory procedure and decided not to participate in its proceedings,finding facts on the basis of unilateral submissions of one of the parties and suggestingterms of settlement might create more problems than it attempts to solve.24 Mattersin such a case are subject to the obligations of the parties to settle the dispute bypeaceful means, refraining from the threat or use of force as provided under the UNCharter and, in particular, under Article 2(3) and (4) and Chapter VI.19. In view of the above, the compulsory means of settlement of disputes under

UNCLOS is confined essentially to disputes arising in respect of sovereign rights andduties of coastal States on the one hand and the right to enjoy freedoms of the highsea accorded to third States on the other in the exclusive economic zone and the con-tinental shelf. It is clear also that the sovereign rights assigned to coastal States withinthe EEZ and the continental shelf are inseparable from the duties entrusted to themin respect of protection and preservation of marine environment, advancing the causeof marine scientific research, and protection and conservation of fisheries in thesemaritime zones. The coastal States are further obliged to determine allowable catchand allocate to third States, including the landlocked States, under articles 62, 69,and 70, the whole or any part of surplus over and above their own harvesting capac-ity. Compulsory settlement of disputes, with arbitration under Annex VII as the de-fault system and compulsory conciliation procedure as a supplementary mechanism,is designed to deal with the disputes which might arise in this connection.20. In return, as part of developing a “package deal” or by way of further balancing

the rights and obligations of all concerned, the Convention provides that the systemof settlement of disputes will not apply to matters that relate to,

(i) the exercise by the coastal State of a right or discretion in accordance with ar-ticle 246 on marine scientific research25; or

(ii) decisions of the coastal State concerning orders of suspension or cessation of aresearch project in accordance with article 253; and

23 In this case the solution proposed by the Commission was for a joint developmentzone, “an idea that would have been unlikely to come from a judicial body reachinga decision solely on the basis of legal rights of the parties”. Ibid., 927.

24 R.R. Churchill and A.V. Lowe, The Law of the Sea, Third Edition (ManchesterUniversity, 1998), 450, 454.

25 Reference here is to the exercise by the coastal State of its discretion to designate spe-cific areas referred to in article 246, paragraph 6 or of its discretion to withhold con-sent in accordance with article 246, paragraph 5.

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(iii) finally, the exercise by the coastal State of its sovereign rights with respect toliving resources; or the exercise of such rights including the exercise of its dis-cretionary powers within its economic zone.

21. Further, where disputes in respect of some of these matters, as noted above, arerequired to be submitted to a conciliation commission, that commission is not em-powered to substitute its own discretion to that of the coastal State.22. Coastal States have accepted the obligations in respect of settlement of disputes

not only as a price to be paid to achieve necessary consensus in negotiations in settingup the legal regime governing the EEZ and the continental shelf but also as a duty to-wards the international community.26 Article 59 of UNCLOS reflects this importantcompromise to resolve conflicts or disputes arising in respect of matters not specifi-cally included either within the scope of exclusive jurisdiction of the coastal State orwithin the rights to be enjoyed by third States within the EEZ and the superjacentwaters of the continental shelf.27

26 The sovereignty a coastal State enjoys over its territorial sea is significantly differentfrom the sovereign rights and exclusive jurisdiction it has over the EEZ. As noted,the principle of exclusive economic zone “struck a perfect compromise betweencoastal State and maritime powers by establishing an area with a special legal status,different from that of the territorial sea and of the high seas”. The principal aim ofnegotiators was to “ensure that the use and exploitation of the oceans would benefitall nations in a way that was fair”. This objective “could only be accomplished by ac-commodating the specific interests of the two main group of countries representedat the conference”. As a result of these efforts, “the idea of an Exclusive EconomicZone [. . .] incorporated the notion of the necessary coexistence of distinct rightsand obligations within different maritime areas in the proper use of the oceans by allStates”, Churchill and Lowe, above n. 24, 11. In other words, EEZ is “not territorialsea with some exceptions in favor of third States nor the high seas with some excep-tions in favor of the coastal State”, ibid., 30.

27 Article 59 states that, “In cases where this Convention does not attribute rights orjurisdiction to the coastal State or to other States within the exclusive economiczone, and a conflict arises between the interests of the coastal State and any otherState or States, the conflict should be resolved on the basis of equity and in the lightof all the relevant circumstances, taking into account the respective importance ofthe interests involved to the parties as well as to the international community as awhole”. This article is based on a compromise worked out by Mexico and supportedwidely within the “Evensen Group” that largely represented a large group of coastalStates which claimed and favored 200-mile resource zone, ibid., 28, 38. Further, ar-ticle 59 must be read with article 55 which defines EEZ as having a sui generis legalstatus; as well as article 58(1) referring to various freedoms of the high seas includingthose rights that are “compatible with the other provisions of this Convention”.These articles incorporate compromise proposals offered by “Castaneda-VindenesGroup” on article 55 and Elliott Richardson (USA) on article 58. The issue here isabout dealing with residual rights, not attributed to any one specific authority andcontrol. These are related to the new and future uses of the sea made possible by



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V. Jurisdiction of the Tribunal: possible objections under article281(1) of UNCLOS23. Before it examined admissibility of the various submissions made by thePhilippines for the purpose of its jurisdiction, the Tribunal considered possible objec-tions on other grounds28 to its jurisdiction on the basis of communications receivedfrom, and the “position paper” made public by, China. First, it may be recalled thatChina expressed its view that the Tribunal lacked jurisdiction on the ground that theparties agreed to exclude the same as part of their commitments under the 2002China-ASEAN Declaration on the code of conduct (DOC) and various joint state-ments to settle the disputes between them peacefully and by negotiations. TheTribunal rejected this objection on the ground that the joint statements are politicalin nature and not legally binding agreements. Second, it noted that years of discus-sions aimed at resolving the Parties’ disputes did not result in any settlement. Third,it held that in any case the DOC did not expressly “exclude any further procedure” asrequired by article 281(1) for the procedure under Part XV to be excluded.29

24. The issue to what extent and under what conditions obligations of compulsorysettlement of disputes binding on parties to UNCLOS would prevail over othermeans agreed to by the parties to settle disputes concerning the interpretation and ap-plication of UNCLOS arose earlier in the context of a dispute raised by Australia andNew Zealand against Japan in respect of conservation of Southern Bluefin Tuna(SBT) under the 1993 Convention on the Conservation of the Southern BluefinTuna. This is an issue that engaged the Arbitral Tribunal in the SBT case betweenAustralia and New Zealand vs. Japan, a Tribunal that was constituted, for the firsttime, under Annex VII of the LOS Convention to which all three States are also par-ties. Japan opposed the jurisdiction of the Tribunal, invoking article 281(1), on theground that it was superseded by the procedure of settlement of disputes agreed to bythe parties as part of the 1993 Convention. Earlier, it may be noted, when theInternational Tribunal for the Law of the Sea (ITLOS) was approached by NewZealand and Australia seeking provisional measures in connection with the same dis-pute, it granted them, rejecting the Japanese objections on the same ground and

development of science and technology and the maritime military uses not contem-plated in the Convention but traditionally practiced by military powers in the highseas; ibid., 44-50.

28 See Award, for possible objections under article 281(1) paras.193-291; under article282, paras. 292-321. The lack of express exclusion of the Convention procedures aswell as in some cases, like the 2006 ASEAN Declaration on code of conduct and the1976 Treaty of Amity, the lack of any binding dispute settlement procedures werecited by the Tribunal for rejecting any possible objections to its jurisdiction.

29 See Award, paras.218-229, 248, and 251.

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holding that, in the absence of an express exclusion under 1993 Convention, primafacie, the Tribunal constituted under Annex VII enjoyed jurisdiction.25. The SBT arbitral tribunal, on the other hand, first observed that lack of express

exclusion of the LOS procedure for the application of Article 288(1) within the 1993Convention was not decisive. It then relied on article 16(2) of the 1993 Conventionto decline its jurisdiction on the ground that article was decisive first to “stress theconsensual nature of any [reference to arbitration]”; and second to “remove proceed-ings under that Article from the reach of the compulsory procedure of peaceful settle-ment of UNCLOS”. In the process the SBT arbitral tribunal also emphasized thatthe dispute arose in the context of implementation of the 1993 Convention and thatit provided for its own procedure for setting up an arbitration panel. The arbitral tri-bunal also annulled the interim measures issued by the ITLOS earlier. Judge Keithappended his dissent on the point taking the view that an express exclusion of proce-dures under the LOS Convention was an imperative.26. The ITLOS accepted the position of Australia and New Zealand, basing its de-

cision first on the ground of “presumption of parallelism of compromissory clauses”;and second, because it “is a commonplace of international law and state practice formore than one treaty to bear upon a particular dispute”. The SBT arbitral tribunal, itis worth noting, was careful in neither disputing the position of the ITLOS nor thatof the Applicants, Australia and New Zealand, on this point. In fact it accepted thatthere “is frequently a parallelism of treaties both in substantive content and in provi-sions for settlement of disputes arising thereunder”.30

27. Following some lengthy discussion,31 the Tribunal in the present case agreed,as noted above, with the ITLOS and shared the dissenting opinion of Judge Keith ofNew Zealand in the Southern Bluefin Tuna Case. Accordingly, it held that an expressexclusion is necessary.32 The view of the Tribunal may have some justification in con-sidering the commitment under the DOC as not sufficient enough to deny it jurisdic-tion in the matter, in view of the lack of consensus on the matter of exclusion offurther procedures thereunder between China and the Philippines and other partiesto that Declaration. But it is not correct for it to insist that for the compulsory settle-ment of dispute procedures under UNCLOS would continue to apply unless the par-ties excluded the same in express terms. In this regard, China is correct in taking theview, similar to the one taken by the majority opinion in the SBT Tribunal, that lackof an express exclusion is not “decisive”; what is decisive is the clear intent and the ex-istence of consensus or the lack thereof among the parties.

30 For a succinct analysis of the decision of the Tribunal in this case see Stephen M.Schwebel (President of the Tribunal), “The Southern Bluefin Tuna Case” in N.Ando et.al (eds.), above n.16, 743-748.

31 See Award, above n.2, at paras.221-225.32 Award, above n.2, 87, para.223.



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VI. Jurisdiction of the Tribunal: the obligation to “ExchangeViews” under article 283 of UNCLOS and generally to enter intonegotiations28. Furthermore, the Tribunal held that the terms of the Treaty of Amity andCooperation in South East Asia and the Convention on Biological Diversity to whichChina and the Philippines are also parties are no bar for the exercise of its jurisdictionbecause: (i) they do not provide for a “binding mechanism”; and (ii) they do not “ex-clude further procedures” within the meaning of article 281(1) of the Convention.33

It also held that the Philippines satisfied the requirement under article 283 of theConvention concerning the obligation to “exchange views”.34

29. The Tribunal considered as a follow-up the question whether, independentlyof article 283, the Convention nevertheless imposed an obligation on States parties toengage in negotiations prior to resorting to compulsory settlement.35 In this connec-tion, it noted that,

The Tribunal also recognizes that the Parties’ many discussions and consulta-tions did not address all of the matters in dispute with the same level of specific-ity that is now reflected in the Philippines’ Submissions. This is to be expectedand constitutes no bar to the Philippines’ claims. Even an express obligation tonegotiate requires only that “the subject-matter of the negotiations must relateto the subject-matter of the dispute” and the Convention does not require theParties to set out the specifics of their legal claims in advance of disputesettlement.36

Further, the Tribunal noted that there is no need for the Philippines to engage atany length in any formal negotiations when it considered “that the possibility of a ne-gotiated solution has been exhausted”.37 It concluded, accordingly, and for the

33 On lack of any exclusion of dispute settlement procedures of the Convention underthe 1976 Treaty of Amity to which both China and Philippines are Parties, 101,para.268; and under the 1992 Convention on Biological Diversity in relation toSubmissions 11 and 12 (b) and the compulsory conciliation procedure provided un-der article 27 of the CBD, 105, para.286.

34 See ibid., 112-120, paras.322-343.35 See ibid., 120-123, paras.344-352.36 See ibid., 123, para.351.37 See para.350.i: The Tribunal, while noting that “Article 279 calls on the Parties to

‘seek a solution’ through means that may include negotiations”, added that “As wasstated by ITLOS in Land Reclamation by Singapore in and around the Straits of Johor,‘a State Party is not obliged to pursue procedures under Part XV, Section 1, of theConvention when it concludes that the possibilities of settlement have been ex-hausted”’. Moreover, even an obligation to negotiate “does not imply an obligationto reach an agreement”, and “the States concerned [. . .] are in the best position to

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reasons noted above, “that neither Article 283, nor the obligation to seek a solutionthrough pacific means, including negotiation, poses any bar to the Tribunal’s consid-eration of the Submissions presented by the Philippines”.

VII. Concretization of a dispute through negotiations: a necessaryrequirement for the exercise of jurisdiction by the Tribunal30. Nevertheless, the question remains whether the Tribunal should not have re-quired the Philippines to engage in negotiations as a precondition for it to proceed todeal with the dispute on merits. At least two good reasons commend themselves forthe Tribunal to take such a course. First, it is suggested that the map depicting thenine-dash line, in so far as it does not have any precise coordinates, could be taken ashaving only “informative, rather than probative value”.38 The map is certainly notthe only and sole evidence for the case of China. Its purpose may even be only to beillustrative or informative. But the real evidence supporting the Chinese assertion ofsovereignty over various groups of islands and associated maritime features and theirmaritime entitlement not only under the Convention but also under “historic titles”could only come from China in negotiations.31. Second, the Tribunal spent considerable effort as part of its duty to satisfy itself

that there is a “dispute” between the Philippines and China. In this connection, itconcluded, among other things, that the Philippines made the necessary effort to “ex-change views” on the means of settling the dispute with China as required under arti-cle 283 of the Convention. But it also admitted that “the Parties’ many discussionsand consultations did not address all of the matters in dispute with the same level ofspecificity that is now reflected in the Philippines’ Submissions”.39 As the Tribunal sorightly emphasized, resolving the issues of sovereignty, historic titles and rights andthe maritime delimitation require direct negotiations. Only such negotiations wouldhave given both the Philippines and China the opportunity they needed to appreciatetheir respective claims in concrete terms and to engage in right earnest to resolvethem. Unless some rounds of negotiations took place, no party to the dispute couldhave legitimately claimed and established in good faith that it exhausted all the possi-bilities for a negotiated settlement of the dispute.40

judge as to political reasons which may prevent the settlement of a given dispute bydiplomatic negotiation”.

38 See Florian Dupuy and Pierre-Marie Dupuy, A Legal Analysis of China’s HistoricRights Claim in The South China Sea, 107 AJIL (2013), 124-141, at 132.

39 See Award, above, n.2, 123, para.351.40 The ICJ noted that a negotiation can be said as a matter of law to have been tried

and to have been exhausted once the negotiating process experiences “failure [. . .] orbecome[s] futile or deadlocked”, Application of the International Convention onthe Elimination of All Forms of Racial Discrimination (Georgia v. Russian



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32. In fact, articles 74(2) and 83(2) of the 1982 United Nations Convention onthe Law of the Sea, specifically require States with opposite or adjacent coasts to reachagreement with each other as regards the delimitation of, respectively, the exclusiveeconomic zone and the continental shelf within a “reasonable period of time”. Whilethere are no “hard and fast” rules regarding the meaning of a “reasonable period oftime”, each case having to be assessed on the basis of particular facts and circum-stances, it is worth noting that the Tribunal in the 2006 arbitral award in Barbados v.Trinidad and Tobago found that negotiations related to the delimitation of the exclu-sive economic zone and the continental shelf over the course of roughly 25 years thatfailed to result in an agreement between the States satisfied the criterion of a reason-able period of time.41 In the more recent case of maritime boundary delimitation inthe Bay of Bengal between Bangladesh and India, the parties were engaged in negotia-tions for nearly 40 years before the matter got resolved through arbitration. Underthe circumstances, one would think it is not only open but would have been appro-priate for the Tribunal to have insisted that the Parties actually engage in negotiationsover the proper subject matter of the dispute including the various Submissions madeby the Philippines, even if it felt that there is no immediate bar for exercising itsjurisdiction.42

Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, 70, para.159,at 133. The Court clarified that it could be said that negotiation had been tried andhad been exhausted when the “basic positions [of the parties to a dispute had] notsubsequently evolved”. See Questions relating to the Obligation to Prosecute orExtradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, 422, para.59, at446.On the question of when negotiations exhausted possibilities of a settlement,

“The law of negotiation does not focus on temporal concerns as such; these are sec-ondary. Rather, it looks at good faith and related considerations. In a word, the focusis on whether, considering all of the facts and circumstances at issue, the negotiationis, or can be said to have been, meaningful. The concern is with conduct, not result,on process, not conclusive resolution. It is a question of due diligence, as well.” SeeRobert P. Barnidge, Jr., The International Law of Negotiations as a Means ofDispute Settlement, 36 Fordham ILJ (2013), 545-573, at 560.

41 See: In The Matter of Arbitration Between: Barbados and The Republic of Trinidadand Tobago, The Hague, 11 April 2006. Also available as Delimitation of ExclusiveEconomic Zone and Continental Shelf (Barb. v. Trin. & Tobago), 27 R.I.A.A. 147,204 (Perm. Ct. Arb. 2006).

42 In the 1924 case Mavrommatis Palestine Concessions (Mavrommatis), thePermanent Court of International Justice (“PCIJ”) famously defined a “dispute” as a“disagreement on a point of law or fact, a conflict of legal views or of interests be-tween two persons”. See Mavrommatis Palestine Concessions (Greece v. U.K.),1924 P.C.I.J. (ser. A) No. 2, at 11 (Aug. 30); cited in Robert P. Barnidge, Jr., above,n. 40, at 545. That case hinged upon whether there was a dispute between theUnited Kingdom and Greece and if so, whether the U.K., as Mandatory Power, hadviolated certain of its international legal obligations related to concessions that had

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After all, negotiation is the primary and agreed method of resolution of claims be-tween the Parties as part of consultations and exchange of views between the ASEANand China. This is duly reflected in the Declaration on the code of conduct.Negotiations are equally emphasized as a primary means of settlement of disputes un-der international law and state practice. Compulsory settlement of disputes which isdependent upon the consent of all the parties to a dispute is an exception, and moreso in the case of disputes concerning the interpretation and application of theConvention. Such a consent and consensus is not readily available and even when itwas made available, it was often subjected to specific conditions. Even when treatiesare concluded at the bilateral level, there is so much room for interpretation and ap-plication given the fact that “the plain and natural” meaning of the agreement is neverso “plain and natural” as to not allow the parties some room to justify their politicalchoices. Constructive ambiguity is the hallmark of all agreements. This problem ismore complicated in the case of multilateral treaties which admit declarations andreservations.33. The LOS Convention is a case which best illustrates the importance of settling

differences and disputes arising from its interpretation and application by negotiation,it being acknowledged universally as a “package deal” with several controversial issuesinvolving sovereignty and associated rights and principles governing maritime delimi-tation remaining inconclusive or wrapped-up in vague compromise formulae. For thevery same reasons, issues concerning these matters are excluded from the scope ofcompulsory settlement of disputes provided under the Convention.34. The case law and agreements governing maritime delimitations make one

point abundantly clear. That each settlement of maritime boundary is a Unicom withspecific set of facts and choices made taking into consideration the special circum-stance and the relevant factors peculiar to the particular context of the dispute.43

been granted to Greek national Mavrommatis in Palestine. In his dissenting opin-ion, Judge Moore built upon the PCIJ’s understanding of the nature of a dispute indescribing it as a “pre-existent difference, certainly in the sense and to the extent,that the government which professes to have been aggrieved should have stated itsclaims and the grounds on which they rest, and that the other government shouldhave had an opportunity to reply, and if it rejects the demands, to give its reasonsfor so doing”. Quotation is from Barnidge, ibid., 545-556. The Mavrommatis testfor determining “whether a disagreement simpliciter can be regarded as a legally-cognizable dispute is usually seen as reflecting general international law”. Further,“[a] dispute may be defined as a specific disagreement concerning a matter of fact,law or policy in which a claim or assertion of one party is met with refusal, counter-claim or denial by another”, J.G. Merrils, International Dispute Settlement (5th ed.2011), 1, cited in Barnidge, ibid., fn.3, 556. “The existence of a dispute, of course,is an absolute prerequisite for the application of the international law of dispute set-tlement”; ibid.

43 This is particularly so in the case of settlement of different claims in the SouthChina Sea. Not all facts necessary for resolving sovereignty issues are known.



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Exercise of maritime delimitation requires parties or decision-makers to select appro-priate base points, assign necessary value to rocks, reefs and low tide-elevations and is-lands, and make adjustments to a provisional equidistance line strictly constructed onthe basis of geographical features and the general direction and length of coastlines ofrespective parties to achieve “an equitable result”. The so-called “margin of apprecia-tion” the decision-makers enjoy in the process is wide and varies from case to caseand from judge to judge or decision-maker to decision-maker.35. Ultimately the name of the game is compromise. It is never easy for States to

yield to third party decisions in matters which are as vital and grave to their nationalinterests as issues of sovereignty and maritime delimitation. It is therefore reasonableand common for a State party to a dispute to insist that it be settled by direct negotia-tion; or, failing agreement, by only such other peaceful means as are mutually agreedto achieve not only an “equitable result” but a durable settlement of the dispute.36. It is, however, understood that it is not an abuse of the legal process for the

Philippines to resort unilaterally to the procedure of arbitration. Further admittingthat the Philippines is in any case not obliged under international law to conclude anagreement by negotiations,44 it is nevertheless obliged, as the International Court ofJustice so often insisted of a party to a dispute, to show that it engaged in “negotia-tions” in right earnest and in good faith before it could turn to more compulsory orthird party means of settlement. It is apt, in this connection, to recall the observationof the International Court of Justice in the North Sea Continental Shelf Cases (1969).In that landmark case, the Court, while pointing out that, “it is not a question of ap-plying equity simply as a matter of abstract justice, but of applying a rule of law whichitself requires the application of equitable principles, in accordance with the ideaswhich have always underlain the development of the legal regime of the continentalshelf in this field”, noted that:

the parties are under an obligation to enter into negotiations with a view to ar-riving at an agreement, and not merely to go through a formal process of negoti-ation as a sort of prior condition for the automatic application of a certainmethod of delimitation in the absence of agreement; they are under an

Historic titles, treaty transfers, conquest, occupation and prescription all come toplay a part in dealing with the issues. Straight baselines, archipelagic baselines are an-other issue which will figure in maritime boundary delimitation in this area. See J.Charney, Central East Asian Maritime Boundaries and the LOS Convention, 89AJIL (1995), 724-749.

44 The PCIJ made this clear in 1931, when, in rejecting Poland’s argument thatLithuania was bound to negotiate with it until a legally-binding agreement had beenreached, it stated that although the law of negotiation requires that the parties to anegotiation “pursue them [negotiations] as far as possible, with a view to concludingagreements [, . . .] an obligation to negotiate does not imply an obligation to reachan agreement. Barnidge, above n.40, 549.

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obligation so to conduct themselves that the negotiations are meaningful, whichwill not be the case when either of them insists upon its own position withoutcontemplating any modification of it [. . .] 45

In the absence of such negotiations, it is difficult to judge whether there is a “dis-pute” of the kind the Tribunal could consider as appropriate for its consideration andto satisfy for itself that in respect of that dispute it has jurisdiction.

VIII. Jurisdiction of the Tribunal: submissions of the Philippinesand issues of sovereignty and maritime boundary37. Having disposed of objections to its jurisdiction in terms of article 281(1) andrejected the ground that the Philippines did not fulfil the general obligation first toengage in negotiations to settle the dispute with China in good faith, the Tribunalturned to the various submissions made by the Philippines and examined whether itis entitled to exercise jurisdiction in respect of any or all of them in view of theChinese declaration which excluded all disputes concerning its sovereignty and mari-time boundaries. To deal with the issue of jurisdiction thus faced by the Tribunal, itrightly found it necessary to “isolate the real issue in the case and to identify the objectof the claim”.46

45 See North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark;Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, 3, at47, para.85.

46 Citing Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, 457at 466, para.30, and Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of theCourt, ICJ Reports 1998, 432 at 448, para.30. See also the more recent pronounce-ment of the Court in the case on Obligation to Negotiate Access to the PacificOcean (Bolivia v. Chile), Preliminary Objection, Judgment, 24 September 2015,para.26, 12, available at www.icj-cij.org/docket/files/153/18746.pdf. In this caseChile objected to the jurisdiction of the Court on the ground that the “true subject-matter of Bolivia’s claim” is “territorial sovereignty and the character of Bolivia’s ac-cess to the Pacific Ocean”; and not merely a right of negotiation of a treaty for an ac-cess to the sea but a treaty with a predetermined legal outcome, that is, securing a“sovereign right” of access to the sea. The Court admitted that even though thatmight be the ultimate objective of Bolivia, it does not seek a declaration from theCourt to that effect, and that the Court in finding that it has jurisdiction in the mat-ter takes no view “about the existence, nature or content of any alleged obligation tonegotiate on the part of Chile”, para.36. The Court found its jurisdiction and in thisconnection took note that “The Application does not ask the Court to adjudge anddeclare that Bolivia has a right to sovereign access”, para.32; the Court concludesthat “the subject-matter of the dispute is whether Chile is obligated to negotiate ingood faith Bolivia’s sovereign access to the Pacific Ocean, and, if such an obligationexists, whether Chile has breached it”, paragraph 34; and that the dispute so nar-rowly or strictly defined is not covered by any settlement under any other treaty nor



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38. At the outset, to circumvent the objections raised by China to the jurisdictionof the Tribunal, the Philippines submitted that entitlements that maritime “featuremay generate is [. . .] a matter for objective determination”; and this “does not requireany prior determination of which state has sovereignty over the feature”. In its view,“the same feature could not be a ‘rock’ if it pertains to one State but an island capableof generating entitlement to an EEZ and continental shelf, if it pertains to another”.“Thus”, it adds, “sovereignty is wholly irrelevant”.47

39. The Philippines further submitted that that even if one agreed, for argument’ssake, that China has sovereignty over the entire Spratly Group of Islands, the extentof maritime jurisdiction it claimed in the Northern portion of the South China Seacould not correspond to the entitlements States are allowed or permitted underUNCLOS in respect of their maritime zones.Proceeding from that assumption,

The Philippines notes that the Convention includes provisions on the maxi-mum extent of maritime entitlements and submits that such entitlementsemanate exclusively from maritime features. According to the Philippines, “evenassuming that China is sovereign over all of the insular features it claims, its claimsto ‘historic rights’ within the areas encompassed by the nine-dash line exceedsthe limits of its potential entitlement under the Convention.”48

With respect to the issue concerning maritime delimitation, Philippines arguedthat these would not arise unless and until it is determined that there are overlappingmaritime entitlements. Further, the fact that resolution of the delimitation issues mayrequire the prior resolution of entitlement issues does not mean that entitlement is-sues are an integral part of the delimitation process itself.49

40. The Tribunal, noting the requirement in article 288 of UNCLOS, observedthat it “is not empowered to act except in respect of one or more actual disputes be-tween the Parties”, which are disputes concerning the “interpretation and applicationof the Convention”.50 Noting that there are disputes of different kinds between thePhilippines and China, including disputes on questions of sovereignty, the Tribunal

governed by any other arrangements. Note also that the Court reserved its positionon the purely preliminary character of Chile’s objection for further proceedings (“re-serve its decision on this issue for further proceedings”), para.53.

47 Award, 50, at para.144(a).48 Ibid., 49 at para.143.49 Ibid., 53, at para.146.50 Ibid., 57, at para.148. For the criteria to determine what would constitute a dispute,

See Mavrommatis Palestine Concessions case, jurisdiction, Judgment, 30 August1924, PCIJ series A, No.2, 6 at para.11: “a dispute is a disagreement on a point oflaw or fact, a conflict of views or of interests between two parties”. Cited at ibid.,para.149.

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noted that the decision the former is seeking does not “require the Tribunal to firstrender a decision on sovereignty” either explicitly or even implicitly. Accordingly,“the Tribunal does not accept the objection set out in China’s Position Paper that thedisputes presented by the Philippines concern sovereignty over maritime features”.51

However, the Tribunal stressed that it “is fully conscious of the claims submitted toit, and to the extent that it reaches the merits of any of the Philippines Submissions,intends to ensure that its decision neither advances nor detracts from either Party’sclaims to land sovereignty in the South China Sea”.52

41. In the same vein, the Tribunal held that this “is not a dispute over maritimeboundaries”. Even if maritime boundary delimitation is an “integral and systemicprocess” involving “a wide variety of potential issues arising between the parties to adispute”, the Tribunal adds “that a dispute concerning the existence of an entitlementto a maritime zone is distinct from a dispute concerning the delimitation of thosezones in an area where the entitlements overlap”. It pointed out that while “fixing theextent of parties’ entitlements and the area in which they overlap will commonly beone of the first matters to be addressed in the delimitation of a maritime boundary, itis nevertheless a distinct issue”.53

42. However, accepting that it is not entitled to deal with disputes concerning de-limitation of maritime boundaries, it pointed out that it will address certain of theSubmissions of the Philippines on one condition. It may be recalled that thePhilippines requested the Tribunal, in terms of Submissions 5, 8, and 9, to declarethat specific maritime features are part of its exclusive economic zone and the conti-nental shelf; and that certain Chinese activities interfered with its sovereign rights inits exclusive economic zone. The Tribunal held that even if it is recognized that theyinvolved actual disputes between the Parties, it will accept them for considerationonly if the exclusive economic zone and the continental shelf of the Philippines didnot form part of “any potential overlapping entitlement” with that of the Chinese en-titlements in the same maritime area.54

43. The Tribunal then turned to the question whether there is an actual disputebetween the Parties, given their differences concerning the source of their entitle-ments. In this connection it noted that “China’s claimed entitlements appear to bebased on an understanding of historic rights existing independently of . . . theConvention”.55 On the other hand, the Philippines took the view that “UNCLOSsupersedes and nullifies any ‘historic rights’ that may have existed prior to the

51 Ibid., 60 at para.153.52 Ibid.53 Ibid., 60-61 at paras.155 and 156.54 Ibid., 61, at para.157.55 Ibid., 66, at para.168.



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Convention”,56 and thus requested the Tribunal in terms of its Submissions 1 and 2to declare that China is not entitled to claim rights “beyond those permitted” by theConvention.57 It is of the view that “the Philippines’ Submissions 3, 4, 6, and 7 re-flect a dispute concerning the status of the maritime features and the source of mari-time entitlements in the South China Sea”.58 Submission 5 of the Philippines doespresent a dispute in as much as it wanted the Tribunal to declare that Mischief Reefand Second Thomas Shoal are “low-tide elevations” falling within its exclusive eco-nomic zone and the continental shelf. In so doing it has presented a dispute concern-ing the status of every maritime feature claimed by China within 200 nautical milesof those two maritime features.59

44. Further, Submissions 8-14 are, according to the Tribunal, disputes regardingthe Chinese activities in the South China Sea “implicating provisions of theConvention” concerning their respective rights over petroleum and survey activities,fishing, Chinese installations on Mischief Reef, the actions of Chinese law enforce-ment vessels, and the Philippines’ military presence on Second Thomas Shoal.60 TheTribunal did not find it difficult to accept that Submissions 11 and 12(b) are alsomatters of dispute essentially within the meaning of articles 192 and 194 of theConvention concerning allegations that China’s activities in the South China Seahave caused environmental harm, even if in examining this matter the Tribunalmight have to consider relevant provisions of the Convention on Biological Diversity(CBD).61

45. In short, the arguments of the Philippines on jurisdiction turn on two essentialassumptions. One that holds that none of the 750 maritime features in theScarborough Shoal and the Spratly features are capable of “generating an EEZ andcontinental shelf entitlement”, suggesting thereby that they are “rocks” and low tideelevations or other insular features not amounting to land or islands, capable of ap-propriation by way of assertion of “historic rights”.62 The other assumption is thatPhilippines is entitled to 200mile EEZ and continental shelf and most of these fea-tures fall within its EEZ or the continental shelf which do not have any potentialoverlap with the true maritime entitlements of China under the same UNCLOS.46. Having concluded thus there are actual disputes between the Parties on the in-

terpretation and application of UNCLOS, the Tribunal proceeded to indicate its de-cision on the question of its jurisdiction. Of the 14 Submissions made by the

56 Ibid.57 Ibid., 34, para. 101(1).58 Ibid., 66, at para.169.59 Ibid., 67-68 at para.172.60 Ibid., 68, at para.173.61 Ibid., 69, para.176.62 See Award, 50, at para.144 (b), and 60, at para.153.

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Philippines, the Court decided that it has jurisdiction on Submissions 3, 4, 6, 7, 10,11, and 13. On seven others, Submissions 1, 2, 5, 8, 9, 12, and 14, it decided to linkits ruling on its jurisdiction to the merits phase as the issues involved “do not possessan exclusively preliminary character”.63 It directed the Philippines to narrow downSubmission 15 and reserved consideration of its jurisdiction on that Submission alsoto the merits phase.64 As the Tribunal explained, Submission 2 would require theTribunal to decide on the nature and validity of historic rights claimed by China inthe South China Sea. The Tribunal noted that it cannot decide on this matter if theclaims involved were otherwise “covered by the exclusion from jurisdiction of ‘historicbays or titles’ in Article 298”. In addition, the existence of any overlapping entitle-ments, the Tribunal noted, would, in turn, “potentially impact the application ofother limitations and exceptions in Article 297 and 298”.65

47. There are other Submissions on the status of certain maritime features. Any de-cision on them would also be barred, the Tribunal pointed out, “in the light ofArticle 298 and the China’s Declaration”, if contrary to the position taken by thePhilippines, “any maritime feature in the Spratly Islands constitute an ‘island’ withinthe meaning of Article 121 of UNCLOS, generating an entitlement to an exclusiveeconomic zone or continental shelf [. . .]”. In that case, the Tribunal admitted that itwould not be able to decide on Submissions 5, 8, and 9 without first determining theParties’ overlapping entitlements, which is excluded from its jurisdiction in the lightof article 298.66

48. Similarly, according the Tribunal, the validity of Submissions 8, 9, 10, and 13which relate to Chinese law enforcement activities in maritime zones, would dependupon the determination whether “such law enforcement activities took placewithin China’s exclusive economic zone or in an area in which the Parties possessoverlapping entitlements to an exclusive economic zone”.67 In turn, it was noted,these are matters which are excluded from the jurisdiction of the Tribunal under arti-cle 298.

63 The Tribunal relied on the same criterion enunciated by the International Court ofJustice in the Territorial and Maritime Dispute (Nicaragua v. Colombia)Preliminary Objections, Judgment, ICJ Reports 2007, 832 at 852, para.51, when itnoted that a party raising a preliminary objection to its jurisdiction “will have theseobjections answered at the preliminary stage of the proceedings unless the Courtdoes not have before it all facts necessary to decide the question raised or answeringthe preliminary objection would determine the dispute, or some elements thereof,on the merits”. See ibid., 139 (fn.379), para.390.

64 Award, 147, para.412.65 Ibid., 139, para.393.66 Ibid., para.394.67 Ibid., 140, para.395.



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49. Further, the Tribunal pointed out that the Philippines’ Submissions 12 and14, raising objections to certain Chinese activities, would also be excluded from its ju-risdiction, if it were determined that they are military in nature.68

50. In the event, the Tribunal decided to examine: whether Scarborough Shoal isan island or a rock within the meaning of article 121 of UNCLOS (Submission 3);the status of Mischief Reef and Second Thomas Shoal, whether they are “low-tide ele-vations” within the meaning of article 13 of UNCLOS, subject to a caveat that theydo not fall in a maritime area where China and the Philippines might possess overlap-ping entitlements (Submission 4); subject to the same caveat, whether Gaven Reefand Mckennon Reef (including Hughes Reef) are “low-tide elevations” within themeaning of article 13 (Submission 6); and whether Johnson Reef, Cuarteron Reef,and Fiery Cross Reef are “islands” or “rocks” within the meaning of article 121(Submission 7).69

In addition, noting that “traditional fishing rights might exist even within theterritorial waters of another State”, the Tribunal also found jurisdiction to con-sider matters raised by the Philippines’ Submission 10 “to the extent that theclaimed rights and alleged interference occurred within the territorial sea ofScarborough Shoal”.70 In this connection the Tribunal is of the view that for theconsideration of this matter, it is irrelevant whether Scarborough Shoal is a rockor island pursuant to article 121. It also noted that articles 297 and 298 have noapplication in the territorial sea. Similarly, the Tribunal found no impedimentfor it to consider matters raised by Submission 11 (on matters of the protectionand preservation of the marine environment at Scarborough Shoal and SecondThomas Shoal and the application of articles 192 and 194 of UNCLOS)71 andSubmission 13 (concerning operation of China’s law enforcement activities inthe vicinity of Scarborough Shoal and the application of articles 21, 24, and 94of UNCLOS “to the extent that the claimed rights and alleged interference oc-curred within the territorial sea of Scarborough Shoal”.72

IX. Jurisdiction of the Tribunal: assessment of the award51. If the objective of the whole exercise of the Tribunal is only to assess the geologyof the maritime features in dispute, it would either amount to an academic exercise oran exercise without real value. China, as has been noted, is not contesting the provi-sions of UNCLOS concerning maritime entitlements of States. This is a matter that

68 Ibid., para. 39669 See ibid., 141-142, paras. 400; 142, para.401; and 143, para.404.70 Ibid., 145, para.407.71 Ibid., para.408.72 Ibid., 147, para.410.

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is well settled under the Convention.73 There is neither a dispute between thePhilippines and China nor could there be one over these provisions in the abstract orin vacuum. The dispute is only about the kind of rights China has or could be assert-ing over them. The Tribunal is aware of this and even acknowledged that it could beso on further examination. Nevertheless it takes a curious position straining its logic,by citing a view of the ICJ in the case concerning the Land and Maritime Boundary(Cameroon v. Nigeria), that it is entitled to deal with the dispute “even if the exactscope of this cannot be determined”.74

52. China’s case, as it repeatedly emphasized, is that it acquired historic rights overseveral of these maritime features through exercise of acts �a titre de souverain. TheChinese case then cannot be disputed or disproved merely by looking at the geologi-cal nature of the maritime features in question and the entitlements they can or can-not generate in terms of the relevant provisions of UNCLOS. They can be assessedonly by examining the nature of acts and functions of sovereignty China claims tohave performed from times immemorial or through history.53. The Tribunal admits this as much when it avers that the case of China based

on its historic rights might be one covered by claims of sovereignty, and hence outsidethe purview of the jurisdiction of the Tribunal.75 But in the same breath, it adds thatthe dispute is concerned with, as presented by the Philippines in its Submissions 1and 2, the status of those historic rights within the framework of UNCLOS; and istherefore one that pertains to the interpretation and application of UNCLOS; hencewithin its jurisdiction. Accordingly it considers Submissions 1 and 2 to reflect a dis-pute concerning the source of maritime entitlements in the South China Sea and theinteraction of China’s claimed “historic rights” with the provisions of theConvention.76.54. The Tribunal is not very convincing when it thus suggests that there could be

a conflict between “historic rights” claimed by China and the rights claimed by thePhilippines under UNCLOS and sets out to settle them in terms of UNCLOS. In soattempting to do, it appears to give the provisions of UNCLOS hierarchically a statushigher than the general or customary law concerning acquisition of sovereignty overterritory or other insular features by States; a status which is not evident from any of

73 In order to generate maritime entitlements under the Convention, an island shouldbe “a naturally formed area of land, surrounded by water, which is above water athigh tide” (article 121(1)). “Rocks which cannot sustain human habitation or eco-nomic life of their own”, however “shall have no exclusive economic zone or conti-nental shelf” (article121 (2)). They could otherwise generate entitlement toterritorial sea. The coastal State could claim jurisdiction over the submerged featuresthat fall within its territorial sea or exclusive economic zone and continental shelf.

74 Award, above, n.2, 67 at para.172.75 Ibid., 66, para.168.76 Ibid., 64, para.164.



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its provisions. While it is agreed that UNCLOS has set out a regime on law of the seawhich is generally considered as binding on all the parties to it, it is not considered tohave status similar to that of the Charter of the UN nor does it have an article compa-rable to Article 103 of the UN Charter specifying priority for member States of obli-gations incurred thereunder over obligations contracted or potentially to be engagedunder other treaties. Its provisions, which are the sum of a package deal, do not cer-tainly have the status of jus cogens to stump all other rights and obligations acquiredby States under either customary law or other conventions. Above all, it is not evenclear, considering that it is a package deal, to what extent UNCLOS can be said to re-flect customary law itself. Churchill and Lowe do suggest rather cautiously that theprovisions of UNCLOS “may be binding on States as customary law”. However,they quickly added that a different view is taken by others that consistent practice inrespect of the provisions of UNCLOS may not provide them the status of customarylaw as they are all part of a package deal.77

X. Inapplicability of the UNCLOS to the issues of sovereignty orhistoric titles and rights55. As the case between the Philippines and China at its core relates to issues of histo-ric titles and rights in the South China Sea, it would be necessary for the Tribunal atthe merits stage, as a preliminary matter, to investigate the facts and possible legal jus-tifications the conflicting claims attract. China claims “indisputable sovereignty overthe islands in the South China Sea and the adjacent waters”.78 Under international

77 See H. Caminos and M.R. Molitor, Progressive Development of International Lawand the Package Deal, 79 AJIL 871-90 (1985) cited by Churchill and Lowe, aboven.24.

78 See the note verbale (CML/17/2009) of 7 May 2009. This is repeated. It is notedthat in response to the protest note of the Philippines of 2011, lodged againstChina’s earlier note, China reiterated on April 14, 2011 its claim and indicated that“China’s sovereignty and related rights and jurisdiction in the South China Sea aresupported by abundant historical and legal evidence.” China further pointed outthat “prior to the 1970s, the Republic of Philippines had never made any claims toNansha [that is, Spratly] Islands or any of its components,” and that “[s]ince 1930s,the Chinese Government has given publicity several times [to] the geographicalscope of China’s Nansha Islands and the names of its components”. This “confirmsChina’s perception that the limits of its sovereignty must be assessed by reference tohistorical evidence”. See Florian Dupuy and Pierre-Marie Dupuy, above, n.38, 130.China first expressed its intentions regarding the South China Sea in the interna-

tional arena in its 4 September 1958 Declaration on China’s Territorial Sea.Although paragraph 1 clearly indicates that China considered the Pratas Islands,Paracel Islands, Macclesfield Bank, and Spratly Islands to belong to its territories,the declaration provided no legal explanation. Its sole purpose was, it seems, to de-fine the limits of its sovereignty as a pure fact.

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law, historic titles and rights with respect to unclaimed or unoccupied islands whichare outside the limits of territorial waters of other coastal States, are evaluated by prin-ciples of discovery, effective occupation, or effectivites, that is, exercise of sovereignfunctions and powers over the island in question in proportion to the nature of theterritory involved.79 This depends on one or more factors such as: how large is the is-land or insular land feature, how well is it populated, its ability to support humanhabitation and economic activity or the kind or type of authority and control exer-cised, as for example, for the establishment and maintenance of a light house.56. More importantly, it is not uncommon for States to invoke “an ancient, origi-

nal or historic title”; particularly in Asia, “where traditional boundaries play a signifi-cant role”.80 This is evident in the case of Malaysia and Singapore involving a disputeover a rocky insular land, which is half the size of a foot-ball field, referred to as PalauBatu Puteh/Pedra Branca.81 In regard to the title over the Palau Batu Puteh/PedraBranca, the ICJ held that while Malaysia had the original title on the basis of historictitle82 as of 1844, it concluded, that commencing from the construction of a lighthouse by the United Kingdom on Pedra Branca/Pulau Batu Puteh in 1844 “espe-cially by reference to the conduct of Singapore and its predecessors �a titre de souverain,taken together with the conduct of Malaysia and its predecessors including their fail-ure to respond to the conduct of Singapore and its predecessors, that by 1980 sover-eignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore”.83

Similarly, in promulgating the 1992 Law on the Territorial Sea and theContiguous Zone, China merely reiterated (in Article 2, quoted earlier) its positionregarding its sovereignty over land features in the South China Sea and their sur-rounding waters, without explaining the legal basis for such a position. Yet again, inits 1996 declaration upon ratifying UNCLOS, China reiterated its claim by refer-ence to Article 2 of the 1992 Law but provided no further elaboration. The firstchronological reference to “historic rights” is found in China’s Exclusive EconomicZone and Continental Shelf Act of 26 June 1998. Ibid., 129.

79 See Ian Brownlie, Principles of Public International Law (Oxford U.P., 6th ed.,2003), chp. 7, 123-161, at 131-139.

80 Ibid., 141, citing Kaikobad, 54 BYBIL (1983), 130-134 .81 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge

(Malaysia/Singapore), Judgment, ICJ Reports 2008, 12.82 The Court concluded “that Malaysia has established to the satisfaction of the Court

that as of the time when the British started their preparations for the construction ofthe lighthouse on Pedra Branca/Pulau Batu Puteh in 1844, this island was underthe sovereignty of the Sultan of Johor”, ibid., para.117. Malaysia claimed title toPulau Batu Puteh from “time immemorial”.

83 Ibid., para.276. The Court summarized various acts of Singapore and response orlack of response to those acts by Malaysia which provided a basis for its conclusion.It noted that, “Without being exhaustive, the Court recalls their investigation of ma-rine accidents, their control over visits, Singapore’s installation of naval communica-tion equipment and its reclamation plans, all of which include acts �a titre de



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57. This case of sovereignty over Pedra Branca between Malaysia/Singapore illus-trates two points: States can claim historic rights to small and uninhabited or evenseemingly uninhabitable maritime features. Second, it is clear that a mere assertion oftitle to an island or insular land feature on the basis of “historic rights” or mere con-trol is not enough. It has to be supported by continuous and uninterrupted, and onemight add unopposed, exercise of sovereign functions in proportion to the nature ofthe maritime feature, particularly in the face of any adverse claim or claims to title.Further, a State which has effective authority and control over the insular land feature,island or large rock can use the same for such uses as it considers appropriate and suit-able in furtherance of its effective control to serve its legitimate interests. In the case ofPedra Branca, a light house was established and maintained for several decades, andmore recently Singapore undertook land reclamation around the island to better itsutilization. In assessing the relative merits of adversarial claims, the case involving sov-ereignty over Pedra Branca took into consideration principles such as prescription,84

souverain, the bulk of them after 1953. Malaysia and its predecessors did not re-spond in any way to that conduct, or the other conduct with that character identi-fied earlier in this Judgment, of all of which (but for the installation of the navalcommunication equipment) it had notice.Further, the Johor authorities and their successors took no action at all on Pedra

Branca/Pulau Batu Puteh from June 1850 for the whole of the following century ormore. And, when official visits (in the 1970s for instance) were made, they were sub-ject to express Singapore permission. Malaysia’s official maps of the 1960s and1970s also indicate an appreciation by it that Singapore had sovereignty. Thosemaps, like the conduct of both Parties which the Court has briefly recalled, are fullyconsistent with the final matter the Court recalls. It is the clearly stated position ofthe Acting Secretary of the State of Johor in 1953 that Johor did not claim owner-ship of Pedra Branca/Pulau Batu Puteh. That statement has major significance”,ibid., paras.274-275.

84 For a reference to acquisitive prescription, see the joint dissenting opinion of JudgesSimma and Abraham. As for the conditions to which the implementation of acquisi-tive prescription is subject, the judges noted that “we know that there are four”.“First, the State which relies on it must exercise authority over the territory con-cerned �a titre de souverain, which implies, on the one hand, the effective exercise ofthe attributes of sovereignty (corpus), and, on the other hand, sovereign intent (ani-mus). Second, the exercise of authority must be peaceful and continuous. Third, theexercise of sovereignty must be public, which is to say visible, an essential conditionfor establishing the acquiescence—through failure to respond—of the State holdingthe original title. Fourth and last, the exercise of authority must continue in the con-ditions just described for quite a long period. Although it did not mention prescrip-tion, as we have said, the Court would not seem to have intended to apply criteriaother than those in the present case”, ibid., 122, para.17.Judges Simma and Abraham also noted that “one idea unmistakably emerges

from the jurisprudence: when there is an original sovereign, no exercise of State au-thority, however continuous and effective, can result in a transfer of sovereignty if it

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acquiescence85 or estoppel.86

58. The Chinese case in respect of its sovereignty over four different island groupswould have to be examined like the case of Malay because it claims to have assertedits sovereignty over the islands and other maritime features in the South China Seafrom historic times. China pointed out that it promptly reasserted the same since1948. The claim of ownership of the islands by the Philippines which it asserted since1970 would have to be weighed against these Chinese claims. The Philippines’ claimswere opposed by China and other countries. Further, while the Chinese claim the

is not possible to establish that, in one way or another, the original sovereign hasconsented to the cession of the territory concerned or acquiesced in its transfer tothe State having de facto exercised its authority. Without such consent—or acquies-cence—original title cannot be ceded, even when confronted by a continuous andeffective exercise of authority by a State other than the holder. That is what theCourt recently pointed out in the case concerning the Land and MaritimeBoundary between Cameroon and Nigeria (Cameroon v. Nigeria: EquatorialGuinea intervening) (see, in particular, the Judgment in ICJ Reports 2002, 346 etseq., paras.62 et seq.). In its Judgment, the Court declined to attach legal effects tothe acts of sovereignty performed by Nigeria in the disputed territory, since, as itsaid in substance, Cameroon held an earlier title to sovereignty and it could not beregarded as having acquiesced to the transfer of that title to Nigeria”, ibid., 120-121,para.13.

85 As the Court in the Malaysia/Singapore case noted, acquiescence “is equivalent totacit recognition manifested by unilateral conduct which the other party may inter-pret as consent [. . .]. (Delimitation of the Maritime Boundary in the Gulf of MaineArea (Canada/United States of America), Judgment, ICJ Reports 1984, 305,para.130)”, ibid., 51, para.121. Further, it is noted that “any passing of sovereigntyover territory on the basis of the conduct of the Parties [. . .] must be manifestedclearly and without any doubt by that conduct and the relevant facts”. “That is espe-cially so if what may be involved, in the case of one of the Parties, is in effect theabandonment of sovereignty over part of its territory”. Ibid., para.122.

86 The Court points out that “a party relying on an estoppel must show, among otherthings, that it has taken distinct acts in reliance on the other party’s statement(North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 26, para.30)”,ibid., 81, para.228. More recently the Arbitral Tribunal in Chagos Marine ProtectedArea, observed in this respect as follows: “estoppel is a general principle of law stem-ming from the general requirement to act in good faith, designed to protect the le-gitimate expectations of a State that acts in reliance upon the representations ofanother and to ensure that a State “cannot blow hot and cold”. “Estoppel may be in-voked where (a) a State has made clear and consistent representations, by word, con-duct, or silence; (b) such representations were made through an agent authorised tospeak for the State with respect to the matter in question; (c) the State invoking es-toppel was induced by such representations to act to its detriment, to suffer a preju-dice, or to convey a benefit upon the representing State; and (d) such reliance waslegitimate, as the representation was one on which the State was entitled to rely”.See Award, above n.2, 96, at para.250.



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entirety of the Spratly group of islands and the Scarborough Shoal, the Philippines’claims are for parts of that group of islands and the Scarborough Shoal.59. The Chinese claim to the South China Sea islands and maritime features and

their adjacent maritime areas on the face of it predates the emergence of the modernlaw of the sea which found its final form in the 1982 UNCLOS. Further, in as muchas they are based on “historic rights”, in some parts, the limits of the maritime areasover which China could lay its claims are governed not by the terms of the UNCLOSbut by the long, continuous and effective control it claims to have exercised over thesemarine areas.87 On the other hand, other coastal States including China also acquiredmaritime entitlements in accordance with the 1982 UNCLOS.60. Thus the limits set under UNCLOS, instead of creating a conflict, as suggested by

the Philippines and envisaged by the Tribunal, could largely result in overlap with theclaims of China under “historic rights”. To the extent they are coterminous there wouldbe no dispute over titles and only a question of delimitation of maritime boundary wherethese claims might overlap with similar claims of the Philippines and other coastal States.On the other hand, where titles and resulting maritime entitlements of China based onhistoric rights are not coterminous with its entitlements under the law of the sea, theycould be seen as conflicting with claims of sovereignty of other States in the South ChinaSea. Thus the Chinese claims based on historic rights could be considered to be in con-flict with the claims of Philippines and other coastal States (Indonesia, and Malaysia andBrunei) based on UNCLOS. On the other hand, claims of China are apparently in con-flict with Vietnam on grounds both of “historic rights” and UNCLOS.61. The 1982 Convention is without a doubt a major piece of codification and pro-

gressive development of contemporary law of the sea. UNCLOS is binding on all partiesnot only in terms of the limits it sets for various maritime zones but also in terms of therights and duties it assigns to the coastal States in relation to the exercise of their sover-eign rights, on the one hand,88 and third States in respect of the rights and freedoms

87 See for an enunciation and application of this test, see the Island of Palmas Case(Netherlands/United States of America), Award of 4 April 1928, RIAA, vol. II(1949), 839. For an analysis of other relevant case law see the Separate Opinion ofSreenivasa Rao, Judge ad hoc in the case between Malaysia/Singapore, above n. 81,155-157, paras. 5-10.

88 Coastal States enjoy sovereignty over the territorial sea, exercise of sovereign rightsand exclusive jurisdiction and control over the EEZ and the continental shelf; theright to refuse or withdraw consent to foreign entities or institutions to conduct ma-rine scientific research in its maritime zones, and discretion it enjoys in determiningthe allowable catch and its own harvesting capacity and allocate any surplus to thirdparties including the landlocked countries in its region are beyond terms of compul-sory dispute settlement. However, they are under a duty to ensure conservation andpreservation of fish stocks and protect them from over exploitation and endanger-ment as a species; protect and preserve marine environment and not deny arbitrarily

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they enjoy, on the other hand, in the various maritime zones.89 However, resolution ofdisputes over historic titles and rights is a matter governed by general international law,relevant treaties and customary practices. Above all, these are matters that are dependentupon the relevant evidence, as noted, concerning long, continuous and peaceful exerciseof sovereign functions. These are matters that are clearly outside the scope ofUNCLOS.62. It does not appear possible for the Tribunal to declare that merely on the basis

of provisions of UNCLOS China cannot appropriate low-tide elevations and equateor assimilate them to the status of islands capable of generating entitlements to differ-ent maritime zones. For this it would have to weigh and evaluate the various acts itperformed before the dispute with the Philippines arose. In respect of low-tide eleva-tions and “rocks”, there is no express prohibition in customary law of the sea againsttheir appropriation. As the Court in in the Qatar v. Bahrain case noted,

The decisive question for the present case is whether a State can acquire sover-eignty by appropriation over a low-tide elevation situated within the breadth ofits territorial sea when that same low-tide elevation lies also within the breadthof the territorial sea of another State.

International treaty law is silent on the question whether low tide elevationscan be considered to be “territory”. Nor is the Court aware of a uniform andwidespread State practice which might have given rise to a customary rule whichunequivocally permits or excludes appropriation of low-tide elevations. It is onlyin the context of the law of the sea that a number of permissive rules have beenestablished with regard to low-tide elevations which are situated at a relativelyshort distance from a Coast.90

Any further observations the Court made in that context with respect to the statusof low-tide elevations and other maritime features under the law of the sea as devel-oped since 1958 and now incorporated in the relevant provisions of the 1982

allocation of surplus in fish stocks to third parties over and above its own harvestingcapacity.

89 Third states enjoy the right of innocent passage and the use and enjoyment of thefreedoms of the high sea in the maritime zones which are otherwise under the exclu-sive jurisdiction and control of the coastal State. They cannot establish any artificialinstallations in these maritime zones which would come in conflict with the sover-eign rights coastal States have over the economic uses to which the maritime zonesunder its exclusive jurisdiction and control.

90 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain(Qatar v. Bahrain), Merits, Judgment, ICJ Reports 2001, 40, at 101-102,paras.204-205.



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UNCLOS91 cannot be used by the Tribunal as a basis to assess rights China claims tohave acquired prior to their conclusion.92

63. It is clear, incidentally, if we go by the jurisprudence of the Court and the lawconcerning acquisition of sovereignty over islands and other maritime features, theChinese claims concerning the historic rights must be verified or assessed in terms ofthe inter-temporal law, that is, law in force at the time it claims to have consolidatedthose rights93; and on the basis of sovereign acts it performed to consolidate its title

91 The Court, however, went on to add what the law as developed since 1958 and crys-talized in the 1982 Convention would suggest, “in the absence of other rules and le-gal principles”, by way of general principles governing the status of law on low tideelevations and rocks, first for the purpose of appropriation or acquisition and secondfor the purpose of using them as base points for extending the outer limits of the ter-ritorial sea. In both these respects it found that on the basis of the “few existingrules”, a general assumption that “low-tide elevations are territory in the same senseas islands” cannot be justified. Noting that “the difference in effects which the lawof the sea attributes to islands and low-tide elevations is considerable”, it noted thatit “is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully as-similated with islands or other land territory”. Further, referring to paragraph 3 ofArticle 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zoneand paragraph 4 of article 7 of the 1982 Convention on the Law of the Sea, theCourt noted that “straight baselines shall not be drawn to and from low-tide eleva-tions unless lighthouses or similar installations which are permanently above sealevel have been built on them”. These provisions, according to the Court, “are an-other indication that low-tide elevations cannot be equated with islands, which un-der all circumstances qualify as basepoints for straight baselines”. Ibid., at 102,paras.206-208. Concerning the territoriality of low-tide elevations, see Y. Tanaka,Low-Tide Elevations in International Law of the Sea: Selected Issues, 20 OceanYearbook (2006), 198-207.

92 Judge Oda related the origins of the present law of the sea as incorporated in the1982 UNCLOS to the development of law to the 1930 Hague Conference for theCodification of International Law. See the separate opinion of Judge Shigeru Oda,Maritime Delimitation and Territorial Questions between Qatar and Bahrain(Qatar v. Bahrain) Merits, Judgment, ICJ Reports 2001, 40, 119-143, at 124-125,paras.7-8. If we go by this observation, in order to succeed China might have toshow exercise of its sovereign functions from a date prior to 1930 to show that it ac-quired sovereignty or sovereign rights over the maritime features in question.

93 According to Sir Gerald Fitzmaurice, cited by Sir Ian Brownlie, “It can now be re-garded as an established principle of international law that in such cases the situationin question must be appraised, and the treaty interpreted, in the light of the rules ofinternational law as they existed at the time, and not as they exist today”. See IanBrownlie, above n.76, 124-125. This principle was applied by Judge Huber in theIsland of Palmas case. Ibid. On the acquisition of legal tile to territory, see Dr.Yoshifumi Tanaka, Passing of Sovereignty: the Malaysia/Singapore TerritorialDispute before the ICJ, The Hague Justice Portal, 25 August 2008, www.haguejusticeportal.net/index.php?id¼9665, 11 (fn.48). See also G Distefano, The

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prior to the “critical date”94 on which the dispute between China and the Philippinesmight be said to have been crystallized.64. But these are matters for examination on merits concerning the validity of the

Chinese claims concerning its historic rights. To that extent they are a central part ofissues concern sovereignty and maritime delimitation. Such issues are clearly outsidethe jurisdiction of the Tribunal.

XI. Nature of the Chinese claims: “sui generis” integrally linkinghistoric rights and rights under UNCLOS65. Based on historic rights which are supplemented by UNCLOS, China claims sov-ereignty over the islands and other maritime features of the South China Sea and as-sociated maritime entitlements. To that extent its claim is sui generis in that itconflates two different legal bases for its claims: one based on historic titles and rightsand the other supplemented and enlarged by terms of UNCLOS. In other words it isa complex and interdependent claim and cannot be separated, as one is integrallylinked to the other.95

66. However, in so far as the Philippines appear to distinguish “historic rights”,which are not referred to in any of the provisions of UNCLOS, from “historic waters”or “historic bays” or “historic titles”, which are referred to in article 15 (“historic ti-tle”) and article 10 (“historic bays”), it may be noted that they are all included in the

Conceptualization (Construction) of Territorial Title in the Light of theInternational Court of Justice Case Law, 19 Leiden Journal of International Law(2006), 1041-1075; H. Post, International Law Between Dominium andImperium: Some Reflections on the Foundations of the International Law ofTerritorial Acquisition, in: T.D. Gill and W.P. Heere (eds.), Reflections onPrinciples and Practice of International Law (The Hague et al, Kluwer, 2000), 147-173.

94 On the paramount importance of the “critical date” and its significance, see Tanaka,ibid., 3, and foot note 8 for reference to Sir Gerald Fitzmaurice who defined the crit-ical date as “the date after which the actions of the parties can no longer affect the is-sue”. Sir Gerald Fitzmaurice, 1 The Law and Procedure of the International Courtof Justice (Cambridge, Cambridge University Press, 1995), 261. According toThirlway, the critical date purports to enable a judge to exclude from considerationacts which are likely to have been performed in order to consolidate a State’s ownview as to its rights in an area where it is known that these are disputed. H.Thirlway, The Law and Procedure of the International Court of Justice 1960-1989,Part Seven, 66 British Yearbook of International Law (1996), 33. See also M.G.Kohen, Possession contestee et souverainete territorial (Paris, PUF, 1997) 169-183;L.F.E. Goldie, The Critical Date, 12 ICLQ (1963), 1251-1284.

95 See Sienho Yee, above n.13, 682-685 for a statement on the case of China on thebasis of history and for emphasizing that the dispute between the Philippines is a“sovereignty-delimitation combined dispute”.



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right of a State party to UNCLOS to exclude any dispute concerning them fromUNCLOS compulsory procedures of dispute settlement including compulsory con-ciliation procedure if it “necessarily involves the concurrent consideration of any un-settled dispute concerning sovereignty or other rights over continental shelf or insularland territory” (article 298(1(a)(i)).67. It may be noted in this connection, first, that there is no settled criterion in

customary law to define a “bay”. Article 10 of the UNCLOS, as the ICJ in the Land,Island, and Maritime Frontier case (1982) noted, “might be found to express generalcustomary law”. In spite of this, the practical application of the criterion noted underarticle 10 “is not wholly free from difficulty”. It is noted that the “main difficulty isthat often it is not obvious which are the ‘natural entrance points’ of an indentation”.Further, the “application of the rules to bays with islands fringing, or lying just sea-ward of, the mouth may also be problematic”.96 If this is the case with “bays”, it iseven more problematic to assess the legal validity of claims concerning “historic bays”which are not covered by article 10, “because these bays are likely to be larger thanthe bays” with which it deals.97

68. The legal status of historic bays and historic titles under general internationallaw is not as well settled as the legal status of maritime features and islands and themaritime entitlements they generate under the Convention. Perhaps the most contro-versial bay on historic grounds was that of Libya, in the Gulf of Sidra (Sirte), which itclaimed and drew a baseline of 296 miles. Myanmar also claimed a historic bay anddrew a baseline of 222 miles across the Martaban Bay. Vietnam has claimed historicbay status to parts of the Gulf of Thailand and Tonkin. There are several other exam-ples: Russia to the Peter the Great Bay; Canada to the Hudson Bay, and Italy to theGulf of Taranto. All these claims attracted protests. To sustain a claim to historicbays, and exclusive jurisdiction over the same, effective, open and continuous exerciseof authority is needed and the same must have received the acquiescence of otherStates. These are matters that are required to be established both in fact and in law. Inthe case of countries which suffered colonialism, evidence can relate to times prior tothe colonial period, evidence of functions and acts of colonial power and action bythe newly independent State taken soon after regaining independence. The case of SriLanka with respect to the Gulf of Mannar is one example.98

69. Given the above, it would be highly difficult for the Tribunal to assess theclaims of China over various contested maritime features merely in terms of their sta-tus as geological features under UNCLOS. In any case disputes concerning “historicbays” can be excluded from the procedures of compulsory settlement of disputes.99

96 R.R. Churchill and A.V. Lowe, above n.24, 42-43.97 Ibid., 45.98 See Churchill and Lowe, above n.24, 41-46.99 Ibid., 455.

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70. From the above, it is apparent that the attempt to separate issues and evidenceconcerning historic titles and attempting to focus on interpretation and application ofthe provisions of the Convention is not possible; and in the end it might turn out tobe a futile exercise.71. In any case, the scheme of compulsory settlement of disputes under UNCLOS

does not apply to several important issues such as historic titles and rights, historicbays, military uses and law enforcement activities associated with sovereignty or sover-eign rights. Further, the decisions a coastal State is likely to take in pursuance of exer-cise of its sovereign discretion are also not subject to compulsory dispute settlement.The LOS conference could not achieve any consensus on any of these substantivematters. This is one of the reasons why that dispute settlement mechanism excludeddisputes concerning “historic bays and titles” under article 298.72. In other words, in order for the Tribunal to come to any definitive conclusions

over the Submissions of the Philippines, it would have to necessarily engage in evalu-ating evidence considering historic rights claimed by China. The Tribunal does nothide its frustration or dilemma in this regard, given the objections China raised to itsjurisdiction, when it noted that while China is “free to set out its public position as itconsiders most appropriate”,100 “the existence of a dispute over these issues is not di-minished by the fact that China has not clarified the meaning of the nine-dash line orelaborated on its claim to historic rights”.101

73. The issue, according to the Tribunal, is not whether there are disputes of dif-ferent kinds between China and the Philippines implicating one provision or theother of UNCLOS, but about the “source of maritime entitlements in the SouthChina Sea”. Howsoever one characterizes the “disputes” identified by the Tribunalfor exercising its jurisdiction, these could not be resolved, by its own analysis withoutappreciating available evidence concerning “historic rights” of China. No provision ofthe law of the sea could provide a basis for evaluating that evidence. To this extentthere is obvious contradiction or lack of consistency in the position of the Tribunal.On the one hand, it declares that it is not empowered to deal with issues of sover-eignty and maritime delimitation in view of the Chinese Declaration pertaining tothe disputes under the UNCLOS but, on the other hand, it declares itself competentto examine “the source of maritime entitlements of China in the South China Sea”.In that sense, the position of the Tribunal is manifestly self-contradictory.74. Further the decision to accept jurisdiction with respect to seven of the submis-

sions presented by the Philippines on the working hypothesis that China has sover-eignty over the entire Spratly group of islands, debars it from examining any evidenceconcerning the exercise of sovereignty as contrary to that assumption. The workinghypothesis appears to confirm beyond doubt the point that the resolution of the

100 Award, above n.2, para.160101 Ibid., 65, para.167.



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issues submitted for the Tribunal’s consideration cannot be separated from issuesconcerning Chinese sovereignty over the maritime features and sovereign rights overmaritime areas in dispute. Further, the very essence of the claims of the Philippines,as has been made plain, is to oppose and defeat the Chinese claim of historic rightsand sovereignty over the maritime features of the South China Sea.75. For the reasons noted above, the decision of the Tribunal to accept several

Submissions made by the Philippines on the ground that they do not per se involvedetermination of issues concerning sovereignty and maritime delimitation is unsus-tainable and without merit.

XII. The need for the Tribunal to “isolate the real issue in thecase and to identify the object of the claim”76. The real issue, as the Philippines admits, is a mix of issues questioning sovereigntyof China over the islands and other maritime features in dispute. Submissions 1 and2 of the Philippines to the Tribunal note this as much.102 Admitting that as betweenthe Philippines and China there could be “disputes in respect of several distinct mat-ters”; and that “even within a geographic area such as the South China Sea, theParties can readily be in dispute regarding multiple aspects of the prevailing factualcircumstances or the legal consequences that follow from them”, the Tribunal comesto the conclusion, taking support from the International Court of Justice in UnitedStates Diplomatic and Consular Staff in Tehran, that “there are no grounds to declineto take cognizance of one aspect of a dispute merely because that dispute has other as-pects, however important”.103 The question however is not whether there is morethan one aspect of the matter on which the Parties are in dispute but whether the dif-ferent aspects or dimensions of the same dispute could be artificially broken downinto different disputes for the purpose of jurisdiction. Any such attempt is highlyfraught with the risk of affecting by way of adjudication, explicitly or implicitly, di-rectly or indirectly, issues of sovereignty and historic titles which, by common con-sent, are excluded from the Tribunal’s jurisdiction. The Philippines cited cases in“support for the conclusion that sovereignty claims over maritime features raise no

102 That China’s “maritime entitlements in the South China Sea extend beyond thosepermitted by UNCLOS (in opposition to the [Philippines’], submission 1; andequally that its ‘claim to “historic rights”, including sovereign rights and jurisdiction,within the maritime area enclosed by nine-dash line’” goes “beyond the limits of itsUNCLOS entitlements (in opposition to the [Philippines’] submission 2”. SeeAward, 54, para.147.

103 Award, 59, para.152. See also United States Diplomatic and Consular Staff inTehran (United States v. Iran), Judgment, ICJ Reports 1980, p. 3 at pp. 19-20,para. 36.

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impediment to the determination of their maritime entitlements”.104 But surely theseare cases where jurisdictional issues are not central or relevant; and in any case theywere not concerned with issues of sovereignty and maritime delimitation mixed upwith issues of maritime entitlement of the very same features in terms of UNCLOS.77. It is beyond any doubt that from a reading of article 298(1)(a)(i), disputes

which are mixed up with sovereignty issues are excluded from compulsory disputesettlement procedure including the compulsory conciliation procedure if a State partydecided to exclude them by declaration, as China did.105 In such cases, it is necessaryfor the Tribunal to desist from an expansive interpretation of its competence to exer-cise jurisdiction. In the event the Tribunal appeared to have hastily dismissed themain import of the decision in Chagos Marine Protected Area, where the majority heldagainst jurisdiction on the ground “a decision on Mauritius’ first and second submis-sions would have required an implicit decision on sovereignty and that sovereigntywas the true object of Mauritius’ claims”.106 It is important to note the emphasis ofthe Tribunal in the Chagos case is on the “implicit decision on sovereignty”, which isalso clearly the focus of the Philippines in the present dispute. Thus the Tribunalcould not really be oblivious to the impact of findings it is called upon to make, aspart of its consideration of merits of the Submissions of the Philippines, on the realand actual dispute which awaits resolution by negotiations between the Parties.The interests of China in relation to its claims against a third party, Vietnam,

would also have to be preserved in the process.107 Accordingly, the need for theTribunal to be extra-vigilant at the next stage of merits cannot be overemphasized, ithaving accepted jurisdiction on issues which are mixed and interdependent with is-sues of sovereignty and maritime delimitation, and to live up to the promise it madenot to affect them either explicitly or implicitly.

104 For the cases cited, see Award, 49, at fns.55, 56 and 57.105 See Sienho Yee, above n.13, 689-690.106 See Award, 60, para.154. For the judgment, see In the Matter of the Chagos

Marine Protected Area Arbitration between The Republic of Mauritius and TheUnited Kingdom of Great Britain and Northern Ireland, (PCA, 18 March 2015), athttp://pca-cpa.org/MU-UK%2020150318%20Awardd4b1.pdf?fil_id¼2899.

107 In such matters the ICJ and the Tribunals generally avoid taking jurisdiction andeven if they accept jurisdiction would be extra vigilant to protect them. On thispoint see Sienho Yee, note 13, 691. See also The Bay of Bengal Maritime BoundaryArbitration between the Republic of Bangladesh and The Republic of India,page.147, para.477 (Award available at http://archive.pca-cpa.org/BD-IN%2020140707%20Award2890.pdf?fil_id¼2705); Territorial and MaritimeDispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, 624.



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XIII. Conclusion78. The Tribunal at the outset rightly noted that it is “not empowered to act exceptin respect of one or more actual disputes between the Parties”; in addition to being adispute concerning “the interpretation and application of the Convention”.108

Second, it also correctly identified its task as one to “isolate the real issue in the caseand to identify the object of the claim”. On both these counts the Tribunal’s decisionand reasoning on which it is based are open to serious doubt and question. TheTribunal failed to properly assess the real and actual dispute. It is clear from the sub-missions made by the Philippines that the real object of its exercise is to get a legal di-rection from the Tribunal requiring China to desist from what it would like theTribunal to find as “unlawful claims and activities”. To its credit, the Tribunal didnot take any view yet on this matter which is put forward by the Philippines as its fif-teenth submission. The Tribunal wanted it to clarify its scope and purpose as part ofits hearings on merits. It is obvious, and should have been so to the Tribunal as well,that in so submitting the Philippines made clear its real purpose and main objectivein submitting the other fourteen Submissions. That is, to get a direction from itagainst the claims of China based on historic titles and associated maritime entitle-ments or at least seek to limit them using the Convention as the sole applicable law,knowing full well that the Convention does not encompass in its object and purposeor scope issues of sovereignty, historic titles or bays.79. The determination by the Court that the dispute could artificially be divided

into issues concerning maritime entitlements under law of the sea as opposed to thosegoverned by historic titles is flawed. It failed to recognize that issues of interpretationand application of the Convention in this case are integrally linked to the issues ofsovereignty and maritime delimitation, even if they are two separate parts of the sameexercise. If the issues concerning maritime delimitation and even more so the rightsof sovereignty are outside the jurisdiction of the Tribunal, as agreed to by one and all,its findings on what is left of the various claims submitted by the Philippines are atbest likely to emerge as an exercise in the abstract unrelated to the dispute. If, on theother hand, the findings of the Tribunal were to affect issues of sovereignty and mari-time delimitation, either directly or indirectly, the whole exercise might be seen as adisingenuous and specious attempt on the part of the Philippines and outside thecompetence and in excess of the powers conferred on the Tribunal.80. As for the Tribunal, the summary way in which it dismissed the requirement

of “negotiation” as a condition precedent for the exercise of its jurisdiction, made itsdecision that much less persuasive, despite its studious attention to detail on othergrounds. As a practical or pragmatic matter, the Philippines at the end of the day

108 Award, 57, para.148.

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would in any case have to return to the negotiating table to settle its dispute withChina and achieve a mutually acceptable solution.81. The task before the Tribunal is a delicate one. It places a heavy burden on it to

ensure that the legitimate claims of China and that of the third parties are not preju-diced by its judicial findings.109 It is also hoped that the decisions of this Tribunalwould help the Parties to come closer and not drive them further apart than theywere before in reconciling their respective claims and legitimate interests.110 One cantake some comfort from the fact that the Tribunal itself sees these objectives as of par-amount importance forming the core of its mandate.111

109 The Tribunal decided against the intervention of Vietnam in the present case whichit sought on the ground that it is not an essential or indispensable party to this dis-pute. It is well-known that Vietnam also has claims of sovereignty and historic rightsover the Spratly group of Islands and consequential aspects of maritime delimitation.The Tribunal based its decision on the ground that case between the Philippinesand China does not involve issues of sovereignty and historic titles but only interpre-tation and application of the relevant provisions of UNCLOS.

110 On the potential for prejudice in rendering a judicial decision alongside an ongoingnegotiating process, see the dissenting opinions appended to the ICJ’s 2011 judg-ment, Application of the Interim Accord of 13 September 1995 (the formerYugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, ICJReports 2011, 644, Dissenting Opinion, 5 (Dec. 5, 2011), Xue, J., dissenting; andRoucounas, J., dissenting, available at www.icj-cij.org/docket/files/142/16835.pdf.Cited also in Robert Barnidge, Jr., above n.40, 552.

111 It is stressed that, “The Tribunal does not see the success on [the Philippines’]Submissions would have an effect on the Philippines’s sovereignty claims and ac-cepts that the Philippines has initiated these proceedings with the entirely proper ob-jective of narrowing the issues in dispute between the two States”, Award, 60,para.153.



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